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j£aJT.^uw<a ^aux,'t^\^JLn^y^,^^aJL *^ CK-^Jinj^odO^
tfVl
FUR SEAL ARBITRATION.
PROCEEDINGS
OF THE
Tribunal of Arbitration,
CONVENED AT PARIS
UNDKR THE
TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY ao. 189a,
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:
aOVEBNMENT PEINTINO OFPIOB.
JX2B8.FS
(
Fg
FUIl-SExVL ARBITRATION.
OllAL ARGUMENTS
OF
COUNSEL
ON
CASE AND C0UN1:ER-CASE.
FUR-SEAI. ARHITRATION.
ORAL ARGUMENT
OF
JAMES O. CARTER, ESQ.,
ON liEIIALF OF THE UNITED STATES.
81782
ORAL AIUaJMENT OK Mil. CAUTKR.
SEVENTH DAY, APRIL 12^", 1893.
Mr. Cartki?. Mr. President: it wouM be evidence of inscnsiliility
on my part it' in opening; tint dis<'UHsion ii|>on tiio iiiiportiint qnestionH
witli wliieh we are to deal I shonld tail to express my sense of the
novelty, the iniporfanee, and the di;,'nity of tin; ease, and of the hi{;li
••liaraeler of the Tribunal whi<rli it is my privilejre to address. You,
Mr. President, in acknowledj^in;; the honor (tonferre«l upon yon by your
election as J'resident, exitreascd in ap])ropriate lan;,'ua}ie those asjtira-
tioiis and hopes which are excite<l and fjratilied by so sijjiial an attempt
as this to remove all occasion for the emj)loyment of force between
nati»Hi8 by the substitution of reason in the s(^ttlement of controversies.
1 befj to express my c(un'urrence in those sentiments.
Nor shonld I omit a j;ratefnl recojjnition of the extreme kindness
with which the agent and counsel on the- i)iirt of tlie United States
(lovernment have been recteived. Not only has this niajinitlcent build-
ing witli all its ai)i»liance8 been freely ()tfered for the deliberations of
th(^ Tribunal itself, but every aid an<l assistance which we as counsel
coidd desire have been freely extended tx) us. We recojinize in this a
tin<' and jjenerous hospitality, Avortby of France jyul her great capital —
tlie fair and beautiful capital of tlie world.
Mr. President, in reference to the statt^nent which was made by my
learned friend. Sir Charles liussell, as to the older of proceeding which
counsel have agreed to adopt, subje<it to the a|»i>roval of the Tribunal,
I have only this to say; we <lo not admit that there Is any special tnivs
prohandi resting upon the United States to substantiate its own con-
tention in reference to the questions in dispute. Those (luestions, in
our view, are submitted to the Tribunal for examinaticui 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 allirmative should be taken by the United
States are that they are the party seeking for the affirmatice action of
the Tribunal in their favor. 1 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 im])()rtancc of observing a separation between the ques-
tions of riffht, and those which concern regnlatiom, I shall endeavor
to exactly comply w ith that recommendation. It will not be entirely
possible altogether to separate those questions, but the direct discus-
sion of them I shall keep entirely sei>al'ate. Certain considerations
concerning the question of regulations will arise and become material
and important upon the argumt'ut of the question of property, but I
shall deal with the question of regulations in the argument of the
6
ORAL ARGUMENT OK JAMES C. CARTEH, ERQ.
<|U<'.sti()ii of lunptTty to tlio rxteiit only t(> which it si'j'ins to inc that it
iiiiiy bo iMTtiiiciit to that sultjiM-t. The p'licml and dinH^t ilisnission
of the 4|u<'stion of icKnIatloiiN 1 hIimII ciidt^avor (uin'l'iilly to Hvparatu
from the r<>st of my argument.
Ill tiie (iisciisNJon, Mr. I 'resident, of the iiueHtions wiiielt tiie Tri
liiinal is to determine it Heems to me tliat it will be important in the
tirst ))lace that tiie arbitrators sliould have before them some sl^eteh,
as brief and i-oncis ) as possilde, of tlie subject matter of tlie (M)ntro-
versy, t»f tlie piirtl.Mihir o'.-easions out of which it f^rew, and the su(!-
eessive steps tlironj^'li which it has from time to time ]>assed, until it
has rciiclied tlie staj;e at which we now Hnd it. The learned arbitra-
tors will, I think, tliiis be able to breathe the atmosphere, as it were,
of the case; to approach the (pu'stioiis as the parties tlieinselv»'s
approached them, and thus be able to better understand and appre-
eiate I heir respective contentions.
This, tlicicfore, will be my apolo};y, if apolofjy were needed, for
endeavoring;' to lay before yon an outline as :'oncise as I shall be able
to make it, of the. controversy from tlu^ be^^innin^, before proceedinj; to
dis<*iiss the particular <iuestioii8 which are to be submitted t«i you for
decision.
The cast! has reference to the fjreat fnr-sealin;,' interests whic^h are
centered in lierin},'Seaand in the watt'rs wliii-h adjoin that sea. Those
interests be^aii to assume im|»ortance s<aiietliiii}; like a century ago.
J)urin{if most of the l.Sth century, as all are awnre, the ell'orts and
ambitions of various European powers were directed towards the takiuj^
])ossession, the settlement, aiul the colonization of the temperate and
tropical parts of the American continent. In those efforts, Russia
seems to have taken a comparatively small ])art, if any part at all.
Her enterprise and ambition wereattraj'ted to these Northern seas — seas
which border upon the eoii-t which in ]»art she already possessed — the
Siberian coast of Ueriii}; .^ a. From that coast explorations were made
by enterprisinjr navijjators belonjfing to that nation, until the whole of
liering Sea was discoveretl and the coasts on all its sides explored.
The Aleutian Islands', formiii;;- its southern boundary, were discovere«l
and explored, and a part of what is called the Northwest Coast of the
American continent, south of the Alaskan Peninsula, and reaehiufj
south as far as the r>4th or 5()th dfi;:ree of north latitude was also vis-
ited by Russian navifjators ami establishments were formed upon it in
certain places. The great object of Russia in these enterprises and
explorations was to reaj) for herself the sole i)roHt and the sole benefit
whi<rh could be derived from these remote and ice-bound regions;
namely, that of the fur-bearing animals whi(^b 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 eiigiiged in gathering them constituted the main object of the
original enterprises i)rosecuted by Russian navigators. Tliey had at
a very early i)eriod <liscovered what we call the (.'ommander 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 consi«lerable, industry in
conne<;tion 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 knowle<lge of the habits of the seals
iu the region of the Commander Islands, he could not but suppose that
I
ORAL ARGUMENT OK JAMES C. CAUTEK, ESQ.
no that it
lisniKsioii
Nuparatu
tiie Tri
lilt in tlio
e .sjo'tch,
»e (toiitro-
l tin* suc-
I, until it
il ai'bitra-
s it were,
u'liiselves
1(1 appre-
(h1«'(1, for
I! b« al)le
tM'dinji' t4)
(» you for
v^liicli are
t. Tliose
tury apo.
IbrtH and
lietakin}r
ignite and
8, Kussiii
It at all.
as — seas
s<'d — the
ere made
wiiole of
xplored.
scovered
st of the
readiin^
also vis-
)ou it in
iscs and
e benefit
regions;
lem and
r herself
ves who
t of the
V had at
islands
liey are
ur-seals.
istry in
lof, had
' north-
By were
he seals
ose that
j>
there was, soiiu'wlierc, north of the Aleutian chain in the Itering Sen
another great breeding place and resort for these animals, lie, there-
fore, exitcnded much labor in endeavoring to discover these resorts
and in tlie year 1780, 1 think it was, on one of his voyages, he suddenly
found himself in the ]»reseiice of that tremeiidouH roar — a roar almost
like that of Niagara, it is said — which proceeds from the countless multi-
tudes of those animals upon tlie islands, lie knew then that the object
for which he was seeking had been attnined; and, waiting until the
fog had lifted, he discovered before him the islands to which his name
was afterwards given. That was in 17H<». Immediately following that
discovery many Uussians, sometimes individually and sometimes asso-
ciatetl 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 indis(;rimlnate slaughter of males and females; and
of course it was not long before the disastrous etfe4;ts of that method
became apparent. They wen; greatly .inured in uunibers, and at one
or more times seemed to be tipon the ])oij i Imostof commercial exter-
mination. IJy degrees those engaged in tins pursuit learned what the
laws of nature were in respect to tl"^ preservation of such a race of
animals. They learned that they re highly polygamous in their
nature, and that a certain driift could be aktn from the superfluous
Males without sensibly dei)reciating the Mi'ii-mous numbers of the herd.
Jieaniing those facts, tiiey gra<lu:illy « -Mililishetl an industry upon the
islands, removed thither a considerable number of the jiopulation of
one or more of the Aleutian Islands and k( ])t tlu'm permanently there
for the purpose of guarding the seals upon the islands, and taking at
the time suitable for that ]unpose such a number of su])eiiluous males
as the knowledge they had airquired taught them could be safely taken.
Finally the system which they established grew step by step
more regular and precise; and sometime, 1 think I may say, in the
neighborhood of 1845, they had adopted a regular system which
absolutely forbade the slaughter of females an<l confined the taking
to young males under certain ages and to a certain annual number.
nder 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 jiassed into the possession of
the United States I think 1 may say it was true that the numbers of
the herd were then eA[\x;\l to, if not greater than, ever had been known
since the Islands were tiist discovered. A similar system had been
]>ursued by the Kussians with similar ellcct u])on 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 jienicived 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
ecpiator and near the southern extremity of the South American con-
tinent there were other lands, Masafuera, Juan Fernandez, the
Falkland Islands and other jilaces, nliere there were seals in almost
e(pud nudtitudes. They were on uni;habited islands. They were in
]»laces where no protection could be extended against the ca|)ture of
them. They were in jdaces where no system of regulations limiting
drafts which might be made upim 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, excei>t
8
ORAL AROIIMENT OF JAMES C, CARTER, ESQ.
in some few ])la('ca over which the authority of some power has been
exercised, and wiiere regulations liave been adopted more or less
resemblinji' tliose adopte<l ui»on tlie Pribilof Jslands, and by which
means the race has, to a certain extent, altliough comparatively small,
been preserved.
That was the condition of things when these islands passed into the
possession in the United States under tlie treaty between that Govern-
ment and Knssia of 1807. At first, upon the accjuisitiou by the United
States Government, its authority was not immediately established;
and, consequently, th's lierd of seals was exposed to the indiscrimi-
nate ravages of individuals who might be tempted thither by their
hope of gaining a jirofit; and the result was that in the first year
something like L'4(>,()(H) seals were taken, and although some discrimi-
nation was attemi)ted and an etlbrt was made to confine the taking as far
as ])ossible to males only, yet those efforts were not in eveiy resjx'ct
successful. Tliat great ('raft thus irregularly and indiscriminately
made upon them had undoubtedly a very unfavorable effect; but the
following year the United States succeeded in establishing its authority
and at once re-adopted the system which bad been up to that time
pursued by J\*ussia and which had been followed by such advantageous
results.
In addition to that, and for the purpose of further insuring the
preservation of the hei'd, 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 tlie other ])Ossessions recently acquired
from Knssia. At a later period this statute — with others that had
been subsiMiuently passed — was revised, 1 think in the year 187;}, when
a general revision of the statutes of the Unitetl States was made.
They were revised and nmde more stringent. It was made a criminal
offence to kill any female seal; and the taking of any seals at all
excei)t in pursuance of the authority of the United States and under
such regulations as it might adopt was nnule a criminal offence. Any
vessel engaged in the taking of female seals "in the waters of Alaska,"
according to the ])hrase used in the statute, was made liable to seizure
aiul confiscation ; and in this way it was hoped and expected that the
fur-seals Mould be ])reserved in the future as completely as tlu\v bad
been in the ]»ast and that this herd would continue to be still as pro-
ductive as before, au<l if ]>ossible made more productive. That system
thus initiated by the United States in the year 1870 produced the same
result as had foUowed the regulations established by Russia. The
United States Government was enabled even to take a larger draft
than Russia had ]>rior to that time made upon the herd. Russia luid
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 comUI be safelv taken from the herd, but also for
the reason, as I gathe ■ from the evidence, that at that time the
•lemand 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 tran.sferred to the
United States, I think they amounted to somewhere between fiO.OOO
and 70,000 aninnilly. 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 1800. That is a period of something like 19 years.
The taking of this number of 100,000 did not, at first, ai)pear to lead'
ORAL AllfU!>ri:NT OK JAMES C. CARTER, ESQ.
9
to any <liniinutioii in the nnnibors of the herd; and it was only in the
year l.S!M>, or a few years prior to tliat time, that a diminution in the
numbers of tlie iierd was first observed. Tliis diminution was at that
time attril»nted to causes of wliich I sliall presently say somethiu};.
Sucli was the in<lustry establislied by the United States. It was a
very lieneficial industry — benelicial, in the first instance, to her.-elf.
She had adopted the practice of leasing these islan<ls ujion lonjj
terms — twenty years — to a private cori)oration ; and those leases con-
tained an oblijfation to i)ay a lar.:L;e annual sum in the sh;ipe of a rev-
enue tax, and a {jross sum of some $(!(>,0()0 as rent. In a<ldition to that,
the lessees were recfuired by the terms of the lease to pay to the Tnited
States Government a certain sum u])on every seal captured by then),
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 suj)-
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 (lovernment, ui)on tlu' 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 wisli 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 ()l)tain 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 niiinkind by this particular mode of dealing
with the fur-seals whi<'h had been established and carried on upon the
Pribilof Islands. IMankind received the benefit of the entire annual
increase, and at the same time the stock was jieriietually 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 ]»ro(luct of the herd was contributed at once to com-
merce, and through the instrumentality of commerce was carried all
over the world to tliose 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 tlie same terms upon which the citizens of the
United States enjoyed them. This contribution of the annual ]>roduct
to the purposes of commerce, to be dealt with as commerce deals with
one oi its subjects, of course amounted substantially to putting it up
at aiiction, 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 iuiportant indus-
try in (ireat Britaui. It was there that the sealskins were manufactured
and prepared for sale hi 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
jiarticular benefit was secured to (Ireat Britain in conseciueiu^e of this
industry.
In the few years preceding IHDO, the (lovernment of the United States
was made aware of a peril to the industry which had thus been estab-
10
OUaL argument op JAMES C. CARTER, ESQ.
lishcd, and which it was iu the enjoyment of— a peril to the preser-
vation of this race of seals — a peril, not proceeding from wliat may be
called natural causes, such as the killing by whales and other animals
which i)rey 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 enccmntering
the roughest weatiier, and of carrying boats and boatmen and hunters,
armed with every appliance for taking and slaughtering the seals upon
their passage through the seas. That practice began, I think, In the year
lH7<i, 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 JJering Sea at all; and their
drafts upon the seals, even in the North Pacific Ocean, were at first
extrem»^]y 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-
<!eived, more and more were temi)ted to engage in it, and a larger and
larger investment of capital was made in it. More and more vessels
]>r()secuted the fishery in the North Pacific Ocean, and iu 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 Itussian, and the whole of the American, oc(rupatiou of
these islaiuls, there had been no such thing as pelagic sealing, except
in the insignilicantway already mentioned by the Indians. Those two
nations had enjoyed the full benefit of this property, the full benefit of
these herds of seals, in as complete a degree as if they had been rec-
ognized as the sole pro]>rietors of them, and as if a title in them, not
only while they wert ashore and upon the breeding islands, but while
they were absent upon their migrations, had been recognized in them
during that whole period ; or as if there had been some regulation among
the nations absolutely prohibiting all pelagic sealing. Up to the periocl
when i)elagic sealing began to be extended those advantages were
exclusively enjoyed by Kussia and the United States; and at first, as
I have said, this pelagic sealing did not extend into Bering Sea, but
was carried ou 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 prcvsent time altogether to say. It maybe 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 th.it during the whole of the Russian occupation, Kussia did
assert for herself an exclusive right to all the i)ro(lucts of that region
of the globe; and it was also well known to all Governments, and to
these pelagic sealers, that the Unit^ed States had, when they acceded
to the sovereignty over these islands, asserted a similar right, and made
the practice of pelagic sealing, in Bering Sea at least — pe,rha])s 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 i)elagic
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 OP JAMES C. CARTER, ESQ.
11
while
in them
ainon^
)erio«l
were
irist, as
ea, but
of the
regiou
in<i to
ceded
I made
Hither,
Bnt
)elaf>ic
sel did
called
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 a|)preciated 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 8upi)ose that their interests
were parti<.'ularly threatened by it. Consequently, for the first two or
three years no notice seems to have been taken of these enterprises by
tlie Government of the United States, although it had laws against
them. But in 18H(», this practi(!e of taking seals at sea became so
largely extended that it excited ai)preheiisions for the safety of the
herd; and it was perhaps thought at that time that there was already
observable in tlie 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 prev« nt it, and tiie first method
to which it resort e<l was an attempt to enforce tlie 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 sui)press the ])ractice, and to
enfonte those laws. The lesult was that in the year 1880 three Jiritish
vessels and some American vessels were taken while engaged in tiie
pursuit illegally under the laws of the United States. They were car-
ried in and condemned.
These seizures were in 188G. They were followed by protest on the
part of Great Britain and that protest was nnide by a note addressed
by Sir Lionel Sackville West to JNlr. Bayar<l.
Sir Charles Bussell. 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.
Wasuinoton, Sei>1emher S7, rSSO. (Kocrivtul September 28.)
Sii': I liiive tho honor to inlonii yon that Iter Majesty's (Jovcrniuent hav(» lecnivcrt
a toU'^fram from tUa commander-in-cliintot' llor Majesty's naval f()r<!es ou the I'acitiu
station rcKi>e<'tin;i the aUej^ed seiznre of the tlireo liritish ('olnmhian seal scLooiiers
by the United States rcvenno cruiser Corwhi, and 1 am in <'onse(iuenco iiistriieted to
recinest to be I'liriiished with any i)articnlar8 which the United States (jovumineut
may possess relative to this occurrence.
I have etc., L. S. Sackville Wkst.
That was the first note addressed by the British (lovernment in con-
sequj'nce of the.--! seizures and, as the learned arbitrators w'ill 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 nut give the requisite information. Tiie locality, as you will per-
ceive, is exceedingly remote from Washington, and communication
with it could only be had on rare occasions. The opportunities for com-
munication were very few, and. therefore it was necessary, it was una-
voidable, that a very considerable period of tin>e would elapse before
the United States could procure the information desired by the liritish
Government, and accjuaint themselves with the particulars. But,
by reason of this demand the United States (Jrovernment was called
upon to consider quebtious that would thus be likely to arise and to
12
ORAL ARGUMENT OF JAMES 0. CARTER, ESQ.
deterimiie the course it would bo 1)ost to pursue \n rcrercnce to tliose
questions — to consider the oxipency witli \vhi<'h it was tlius confronted.
What was it? Jlrre had been an industry carried on by Itussia, before
the acquisition by the United States, for three-fourths of a century. It
liad been contiiuied by tlio United States for twenty years, and contin-
ued with all the benefits to the United States and to the world which
I have mentioned. It was threatened by this ])ractice, which was rap-
idly extending itself, of pelajjic sealing. What was pelagic sealinj^: —
for that was the thin}; which at first arrested the attention of the
Unite<l States (loverninent — what iras pela}j;ic seahnj,', and what were
its obvious and its necessary consecpuMuies?
1 must Sfiy a word or two upon that i)oint, although it will f nbse-
quently form a subjeitt of more extended discussion; but right upon
its tiw'.e, pela};i<' sealing ai>peared to be, as it undoubtedly was, simjdy
a rapid method of destroying the race of seals.
Senator jAIoiigan. IJefore you proceed to argue that, I would like to
ask a (piestioii about the sealers in JJering Sea.
Mr. Carter. Certainly.
Senator Morgan. 1 find a table in this Appendix to the Case of the
United States, which states that the "City of San Diego", a schooner,
was sei/x'd 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 ]iritish. Is that the inoper statement as yon understand it?
Mr. Carter. I so understand it. The tirst seizures that were made
wore both American and liritish.
Senator Morgan. The first seizure that was made, according to this
table — an«l 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 1st of
British vessels.
Mr. Carter. Doubtless that is correct. I have not carried in my
mind the fact that the first seizure made was of an American vessel. Jt
would appear to be so by the statement which was read by the learned
arbitrator.
1 have said that pelagic sealing seemed to be simply destruction. It
was destruction be(!ause it was not regulated. It was destruction
because it proceeded in defiance of the obvious and well known laws
which govern the j)rotection 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 i.idiscriminate slaughter
of them on the islands of the southern o(;ean had resulted in the
destruction of the herds in that (piartcr of the globe. They could not
inmglne 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 oi)era-
tion for nearly a century, by which the whole benefit of this race of
aninnils was secured, and pernuinently secured to man, without any
peril to the stock, any man or any nation (iould rightfully, on tlie sea,
or anywhere else, come in and by an indiscriminate Jind destructive
pursuit of the animal take away that benefit forever from mankind. So
it seemed to them, and so, therefore, they had no hesitation in gi' ng
the instructions which resulted in the seizure of these vessels; and
those seizures resulted in the demand which I have just read.
ce to tliose
coiifpoiiti'd.
ssia, before
ientury. It
and coiitin-
rorld wliicli
cli was r.ap-
(! sealiiifr —
itioii of tlie
I what were
will fitbse-
riglit iipon
was, sinijily
oiild like to
Case of tlie
ii schooner,
d it was an
na, find the
second, and
ilerstand it?
t were made
ding to this
s an Ameri-
gust 1st of
ried in my
|i vessel. Jt
the learned
■action. It
Idestruction
nown laws
If seals. If
[l as surely
slaughter
I ted in the
could not
[that it was
the globe,
|ie bounties
Ire was an
\n in opera-
[liis race of
|ithont any
)n the sea,
llestructive
Mkind. So
in gi' Mg
Issels; and
Id.
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
13
I have said that there was no immediate answer to tliis call of the
British (iovernment, 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
2Ist of (^)('tober, 1880, 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, Octohvr SI, 1SS6. (Received October 22.)
8iK: With reference to uiy not*) of the 27 tb ultimo, requesting to be fiirnisbud
witli any ]iaiticuli>r8 wbidi the United Stattis (Jovernment may possess relative to
the sei/.ure in the North i'liciliu waters of three British Columbian seal schooners by
the United .States revenue cruiser Corwin, and to wliich I am without reply, 1 have
the honor to inform you that I am now instructed l)y 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 apjjcar 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 wliich I have last irentioued. This was written on the 30th
of October 1 880. 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 CuARi.ES Russell. It did not precede the other. It is later.
Mr. Carter. Yes, it is a later note. I am much obliged to you. It
is a later note, dated October 30th :
Earl of Iddesleigh to Sir L, S. Sackville fVest.
FouEKJN Office, October SO, ISSG.
Sin : Her Majesty's Government are still awaiting a report on tlie result of a]>plica-
tion which you were directi>d by my dispatch No. — 181, of the Itth ultimo, to makn
to tlie Government of the United States for information in regard to the rei)orted
seizure by the United States revenue cutter Corwin of three Canadian schoouers
while engaged in the pursuit of seals in Hehring'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 lui 1 expected from the Government of the United States.
This note proceeds thus :
Tt ai>pears tliat three schooners, named respectively the Carolina, Onward and t!io
Thornton wore fitted out in Victoria, British Columbia, i'or the capture of seals in
tlie waters of the Northern Pacitic Ocean adjacent to Vancouver's Island, Queeu
Charlotte Islands and Alaska.
According to the dejiositicm enclosed herewith from some of the officers and men
these vessels were engaged in the cajtture 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 latitudt; 55 degrees 50 luiiuites
North, Longitude 168 degrees .53 minutes West; the Onward in latitude 50 degrees 52
iiiinut<!s North and Longitude 1(!7 degrees 55 minutes West; and the Thornton in
about the same latitude and longitude.
They were all at a distance of nu)re than sixty miles from the nearest land at the
I iiuo of their seizure, and on being ca])tured were towed by the Corwin to Ounalaska,
\\liere they are still detained. The crews of the Carolina and Thornton, with the
t Nception of the Captain and one man of each vessel detained at that jtort, were, it
appears, sent by 'the steamer St. I'anl to San Francisco, Cal., and tUeu turuod adrift,
^Wlilo the crew of the Onward were kept at Ouualaska,
14
ORAL ARGUMENT OF JAMER C. CARTER, ESQ.
At tho time of their seizure tlie Camtina lisid 686 ncal-skins on board, the Thornton
404 ami tliu Oiiwunl !iUO, and th(;HO wore detained, and would appear to be still kept
at OunalaHka, alon^ with the HchoonerN, by the United States authorities.
According toiiilorinntion ^iven in the "Alaskan" a newspaper publislied at Sitka,
in the territory of Alaska, and dated tlie 4th of September 18^tH, it is reported:
1) That the master and mate of the schooner Thornton were brought for trial before
Ju(lge Dawoon in tlie United States District Court at Sitka, on the 3Uth of August
last.
2) That the evidence given by the oflicers of the United States revenue cutter
i'orwin went to show that the Thornton was seized while in Bering Sea, about 60 or
70 miles Southeast of St. George Island, for tlio oH'euce of hunting and killing seals
within that part of Boring Sea, which (it was alleged by the Alaska newsjiaper), 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 be 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 i)ay a fine of tryQO; and the mate of the Thornton,
Norman, was sentenced to imytrisonment for thirty days and to pay a tine 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 hiive siu<'e been tried and sentenced to undergo penalties similar to those now
being inflicted on the master and mate of the Thornton.
Sir Charles Kussell. 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 Kussell. Beginning with the words "All the waters".
Mr. Carter. This is the part quoted from the Judge's charger
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, aiul all the penalties prescribed by law against the
killing of fur-bearing animals must, therefore, attach agiiinst 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
iieliring 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 State? 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 liereiu sot forth) and imprisonment.
Lord Iddesleigh continues:
Yoa 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 Unitetl 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 prii.Liples of international law.
I request that you will, on the receipt of this dispatch, seek an interview with
Mr. Bayard, and make him acquainted wi+h 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 iMquiry 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 Uritisb vessels
I
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
15
he Thornton
)e still kept
8.
ed lit Sitka,
(orted :
: trial before
h of August
renne cutter
, about 60 «)r
killing seals
Bpaper), wuh
irticle of the
tea, iu which
rs, in accord-
aontonced to
the Thornton,
liineof $300;
iffect.
mrd and Caro-
■ to those now
»T»venieut to
urge.
the waters",
harget
kVestern end of
[ as comprised
iw against the
Eolation of law
I from the evi-
^ers, did, on or
^rton, sable or
aska or in tlio
11(1 the deieud-
i,ry named in
lent separately
Lt more than six
I imprisonment.
, of the United
firing Sea lying
le of the treaty
aska was ceded
, its widest part
ica.
Irfered with the
I, to have taken
Ire, and to have
en in violation
linterview with
formation with
Ills matter, and
fe to he correct,
leuse of justice,
I British veesel*
and the British subjecta above uientioiie<l, ami will cause reasonable reparation to
bo made for the wroiigs to which they liave l»een subjected and for tlio lossos which
they have sustain<-<l.
Should Mr. Bayard desire it, you are authorized tu leave with him a copy of this
(lispatiih.
1 am, etc., Iduksi.eigh.
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 tlie 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. SaclcvUle West to Mr. Bayard.
Washington, April 4, 1887. (Received April 4.)
Sir: In view of the approaching fishing season in Behring Sea and the fitting out
of vessels for fishing operations in those waters, Her Majesty's Government nave
requested mu to ii)(][uire whether the owners of such vessels may rely on being nnmo-
lested by the cruisers of the United States wlien 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 yon 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.
1 have, etc., L. S. Sackville West.
In that note, as you will perceive, two points are made; first, that
some instructions should be given to United States cruisers, so that
Britisli sealers should not be molested in the forthcoming season; and,
second, an inquiry whether the information <lesired had been received.
On the 12th of April, Mr. Bayard replies to that note as follows.
Mr. Bayard to Sir L. S. Sackville West.
Dkpaktment of State, Washington, April H, 1887.
Sir: I have the honor to acknowledge your note of the 4th instant relative to the
fisheries in Behring Sea, and inquiring whether the documents referred to in my
note of February 3, relating to the cases of seizure in those waters of vessels charged
with violating the laws of the United States regulating the killing of fur-seals, had
been received.
The records of the judicial proceedings in the cases in the district court in Alaska
referred to, were only received at this Department on Saturday last, and lixe no^
under exiimiuation.
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-
priato legalations and issuing ordei^B to Unit«4 St^t^l Y«S9eli« \o police the Al^akw
16
OUAL AROIIMENT OF JAME8 C. CAKTEU, ESQ.
M'iitirH for till) iirotcctioii uf tho fur HoalH from iiuliHcriiiiiiiuto Hliiughtor and conso-
<)iient s|»«!f(ly rxtoriiiiiiiiliMii.
I'liK liiWNof tlm I'liilcd Stiitt'8 in this bolialf are coiitiiincd in the ReviHed Statutes
ruhitiii); to Ahisku, in Ni-etions litSti-iyTl, and liavo been in force for upwards of soven-
ti'en ycarH; and i)ri(>r lo tlio Aci/ures of last snnnnur but a single iufruutiou is kuovvu
to have oci^nrrcd, and tiiat was |M'oin])tly pnniMhed.
'I'lie (jnestion of inNtrnctions to (iovcrnnmnt vessels in ro^jard t(» preventing the
indiseriininati! killing of fur Heals is now liuing coiisidenrd, and I will inform you at
the earliest day piiHsible what has lieen dt-eiiled, so that British and other vessels
Tisiting the waters in ([uestiou can govern themselves accordingly.
I have, etc.,
T. F. Bavakd.
That was followed by a note from the British Minister to Mr. Bayard,
on July 8th:
Siu: With rofei'ence to your note of the 12th Ajtril, stating that the records of
the judicial ]>roceedings in the eases of the Itritish vessels seized iu the liehring >Seu
had been received, I have tho honor to inform you that the Marijuis of Salisbury has
instructed me to rorjuest you to be good enough to furnish me with a copy of the
Huuie 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:
Sik: Coni])lying with the request contained iu your note of the 8th insfiant, con-
veyed to me under the instructions of your Oovernmcnt, I have the honor to enclose
you two ])rinte(l copies of the Judicial i)roceeding8in the United States district court
lor 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 repiesentative 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
coiideinued. Upon the receipt of those records by the British minister
they were transmitted to Lord Salisbury, and upon examination of
them, and upon accpiiring 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. lie considers those grounds
and states the attitude of the British Government in relation to them.
Tiiat letter was written on the lOth of September, 1887. Something
like a year had elapsed, the learned arbitrators will perceive, from tho
time of the original seizures, which time had been occupied, presum-
ably, iu tlie endeavor to obtain this information. The Marquis of Salis-
bury M'rites:
FoKKKi.v Okkick, September 10, 1887.
Siu: Hy a disjiatch of the 30tli October last (No. 211) the late Earl of IddesleigU
instructed you to call the attention of tho IJiiitcul States Secretary of State to tho
circumstances of the seizure iu IJehring's Sea, by tho American ('ruiser Coririn, of
some Itritish ('anadiau vessels; and his lordship directed you to state to Mr. Secre-
tary Mayard that Her Majesty's (iovernment 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 (iovernment would admit their illegality, and would
cause reasonable rei)ariition to be made to the British subjects for the wrongs to
which they had been subjei ted and for tho h>s8es which they had sustained.
By a previous dispatch of the ttth September, ycm had been desired to ask to be
furnished with any iiartieulars which the United States tJovernment might possess
relative to the soiz.ures in <|uostion; and on the 10th October you were instructed to
enter a protest on behalf of Her Alajesty's Government, and reserve for consideratiou
hereafter all rights to compensation.
Nearly four months having elaj'.sed without auy definite information being fur-
nished by the Unitcid States (iovernment 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 tho immecliate
attention of the United States Government to the action of the Amerioau autUoritiea
in their treatment of these vessels uud of their masters aud crows.
OUAl. AUOUMKNT OF JAMES C. CAKTEU, KSQ.
17
Oil fho .'til K«ibni:ir.v Mr. Miiyitnl iuforiuud you that tbo record of tlio Judicial ]>ro-
cffdiii^^H wliicli ho hull ciilli-d lor wuh shortly expt'etud to ruai'h VVaHliiiiKton, uiid
that, without coiu'IuhIuii at that tiinu of uiiy (luuNtioiiH which iiii^rht hu found to ho
involved in thi-Ho i:mt'« oi Ki'l/un-H, onlcrN had hcjin issued hv the I'rusideut'H direc-
tion for the (lisi-ontinuance of all |)eudiu<{ |iroceiMliM;rH, the dlHchar^e of the vesHelti
ret'crrt'd to, and the roleaue of all iiersoiiH under arroHt iu coinKMtciou therewitli.
On the 4th of April, under instructiouH from uie, you inijuired of Mr. Kayard, in
viewof theap]iroachin};fiHliiii<rHeartou in Kehring'H Nea, whether tlieownerH of KritiHh
vcNselH ini^ht rely when not near land on heiuff uninole.stcd by the cruiHerM of the
United States, and you agaiu asked when the record of the Judicial proceedings
niif;iit he exjiectt'd.
Mr. Hayard iiiforined you, in reply (12th April), that the papers referred to had
reached liiin and were hein^ exauiiiiiMl; that there had been uinivoidahle delay iu
frfiuiiiifi ai>propriate rej;nlationb and ih.suing orders to the I'nited States vessels to
police the Alaskan waters; that tiie K'evihed .Statutes relating; to Alaska, sections
VXM and 1U71, contained the lawsof the I'nitod States iu relation to the matter; and
tliattho regulations were being considered, and lie would inform you at the earliest
day i>ossible what had been decided, so that Hriti.>«h aud other vessels mi({ht govern
thiinselves accordingly.
In view of the statements made by Mr. Bayard in his note of the 'M February, t^.
whi<;h 1 have referred above, Her Majesty's (iovernnient assumed that, pending a con-
elusion 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 (joveriimeiit. 'I'liey learn, however, from the eontents of Mr. Bayard's
note of the 13th ultimo, in(;losed in your dispatch, No. 2'ir>, of the 15tli ultimo, that
siieli was not the meaning which he intended should ho attached to his coniinunii^a-
tiou of the 3d February; and they deei)ly legret to find a jtroof of their misinterpre-
tation of the intentions of the L'nited States Government from an aiinoiinccment
recently received from the coni'naii<ler-in-chief of Her Majesty's naval forces in the
I'lieilie' that several more British vessels engaged in seal hunting iu Beh ring's Sea
have been seized when a long distance from land by an American revenue vessel.
Her Miijcfily's Government have carefully considered ihe transcript record of the
Judicial proceedings iu the United States distrii't court in the several cases of the
schooners CaniHiiii, Onward, and Thornton, which were couuniinicated to you in .Inly,
and Were transmitted to nie in your dispatch. No. 190, of the 12th of that mouth, and
they can not lind iu them any Justilication for the condemiiatiou of those vessels.
The libels of iuformation allege that they were sei/(Ml for killing fur seal within
the limits of Alaska Territory, aud in the waters thereof, in violation of section Ut'S
of the Kevised Statutes of the United States; and the United States Naval Com-
inauiler Abbey certainly aflirmed that the vessels were seized within the waters of
Alaska aud the Territory of Alaska, but ac(M»rdiug to his own evidence, they wero
seized 75, 115, and 70 miles, respectively, south-southwest of St. George's Island.
It is not disjiiitcd, therefore, that the seizures in (jnestion were ellected at a dis-
tance from land far iu excess of the liiijit of maritime Jurisdiction, which any nation
can I'laim by iuternational law, and it is hardly necessary t«» add that such limit can
not be enlarged by any uiunici])al law.
The claim thus set up apjiears to be founded on the excc]>tional title said to liavo
been conveyed to the United States by Russia at the time of the cession of the Alaska
Territory.
The luetention wliicli the Kiissian Governiiient at one time put forward to exclusive
jurisdiction over the whole of Behring Sea was, however, uever admitted either by
this country or the United States of America. On the contrary, it was strenuously
resisted, as I shall ]iresently show, ami the American Government can hardly claim to
have received from IJnssia rights which they declared to be inadmissible when asserted
by the Russian Government. Nor does it appear from the text of the tieaty of l«t>7
that Russia either intended or ])urpoitcd to make any such grant, for by Article I of
that inHtrument Russia agreed to cede to the United States all the territory and
ilominion then jiosscssed by Russia " on the continent of America ami iu the adjacent
islands" within certain geographical limits described, and no mention was made of
any exclusive right over tlie waters of Behring Sea.
Moreover, M'hat(!vcr rights as regards their resjiective subjects and citizens may
be reciprocally conferred on the Russian and American Governments by treaty stipu-
lations, the subjects of Her Majesty can not be thereby att'ected, except by special
arrangement with this country.
Witli regard to the exclusive claims advanced in times past by Russia, I transmit
to you documents lomniuuicatcd to the United States Congress in 1822, which show
the view taken by the American Government of these pretentions.
In 1821 the Kiii|)eror of Russia had issued an edict establishing "rules for the
limits of navigation and order pf oonimuuicatiou along tlie coast of the easteru
B s, I'x XII — a
18
ORAL ARGUMENT OF JAMES C. CAHTEK, ESQ.
Bilieriii, tlio north woMt.oni coast of Amoricn, and thu Alentiuu, Knrilo, and other
iaIandH."
Thu tirHt HO(;tiou of th«) edict Hnid:
The jMii'Hnit of coninicrro, wlialinfT, and iisliin^, and of all other imlnHtry on all
inlandH, i>ortH, and ^iitfH, incliiilin^ tiin whole ot t\w northwimt const of America,
beginnin); from hehrinff StniitH to the 5lKt de^rreoof northerii hititinle; also from thu
Aluntian iHlunds to thu eiiHtern const of Siberiii, iih well im alonj; thu Knrilu iHlaiwlH
iVom ItehrhiK StniitH to the Noiith cii]H< of the inland of Irup, vi/,, to tliu 45 5U of
northern latitndu, in exeliiMlvely );raiitt;d to KnHsian HnbJectH.
And Huction 2 Htated;
It Ih, therefore, ]ir<diibited to all foreign vesselH, not only to lainl on the coaHt and
iHlandH lielonf^ing to KnHsia, nn Htateil altove, hnt alHO to a]i|ii'oacli llicni within Ichh
than 100 Italian miles. Thu transgrcHHor'H vchhuI is Nubjuct to conllscatiun, along
with the whole cargo.
Lord Salisbury thcsn proceotls: (I desire to save reiidiiig as far as
l)os.sible) to state that coi)ies of tliese regulations w<'re eonimuiiicated
to the American Secretary of State, at that time INlr. John Quiucy
Adams, of great rt^pute in his day, and great fame since, and that he
iisked theKussian(iovernment tor an explanation of the grounds upon
which 8U(^h action was based. The Russian Minister in iiis reply, dated
the l'«th of February, after explaining how liussia had acquired her
possessions in North America, said:
I onght. iu the hint jtlace, to roqneHt yon to coiiHider, Sir, that the Hnnsian nosnes-
ttions in the Pacific Ocean extend on tlie northward coast of America from Heiiring'8
Strait to the 51st degree of north latitntle, and on the opposite Hide of AHia and thu
islandH adjacent from thu same Mtrait to the 45th d(^gree. The extent of sea of which
thcHu iiosHcHHions form the limits comprclicjnlH all the conditions which are ordinarily
attached to Hhnt Hcas (" nir/s fcnmrs"), and the KuKHian (iuvernnient might conne-
qiiently judge itHolf authorised to oxercise npon thiu sea the ri.nht of sovereignty,
and es]>ocially that of entirely interdicting the (entrance of foreigners; but it pre-
ferred only asHurting its essential rights without taking advantage of loealitiuH.
That is the explanation given by the Kussian Minister. Lord Salis-
bury continues:
On thu 30th March Mr. Adams replied to the explanations given by the RuHsiau
minister. He stated that, with respect to the jiretension advanced in regard to ter-
ritory, it must be considered not only with reference to the question of tt-rritorial
rights, but also to tliat ]>rohibition to the vessels of other nations, including t)ioHC
of the United States, to a]>proach within 100 Italian miles of the coasts. That I'rom
thu ]>eriod of thu exiat(>ucu of the United ptates as an iiidojtendcnt nation their
vessels had freely navigated these seas, tiie right to navigate them being a part of
that inde])endunce: and with regard to the suggestion that "the Russian Govern-
ment might liave justified the exercise of sovereignty over the I'acilic Ocean as a
close sea, 'because it claims territory both on its Am<M'ican and Asiatic shores,' it
may siiHice to say that the distance from shore to shore on this sea, in latitude 51"^
north, is not less than 90'^ of longitude or 4000 miles." Mr. Adams concluded as
follows.
The President is persnaded that the citizens of this Union will remain unmolested
in the prosecution of their lawful connnerco, and that no ellect will be given to an
interdiction numit'estly 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 jiretension on the ]>art of Russia to restrict naviga-
tion or fishing iu liehring Sea so far as American citizens were concerned; for by
Article 1 it was agreed that in any part of the Great Ocean, connnonly called tho
Pacific Ocean or South Sea, the respective citizens or subjects of the high contracting
powers shall neither be_ disliiirbed nor resti'ained, either in navigation or fishing,
saving certain restrictions which are not material to tho ]trcsent issue; and a similar
stipulation iu the convention between this country and Russia in the following year
(15th May, 1825), i)ut an eiul as regarded Hritisb sulijects to tlie proteiisionH of Russia
to which I have referred, and wiiich had been entirely rejiudiated by Her Majesty's
Government in corrcs)>ondence with the Russian Government iu 1821 and 1822, Avhich
for your more particular infornnition I inclose hen^in.
Her Majesty's Gov<^rnmcnt feel sure that, iu view of the considerations which I
have set forth in this disiiateh, which you will communicate to Mr. Hayard, the
Government of the United States will admit that the seizure and condemnation of
these British vessels and the inqirisonnient of their masters and crews were not
>varraut«d by the ciroumstiiuccs, ami tU»t they will Ue ready tft uffor4 reasonable
■r.
•r.
OKAL AKOUMKNT OF .IAMK8 <;. CAUTKK, K8Q.
19
Ih April,
Inaviga-
J; for by
llled tlio
fcractiug
liishiii}?,
b similar
Ing year
t' liuHHia
[ajesty's
^, which
iwliich I
jird, the
ition of
lere not
souable
foi.iiiciiHiition to those who have HuHttri'tl in (•(iiiHt(|iu'ii«f, ami ismir iiiniifdiate iiiHtruc-
tii>ii« to ilicir uaval oIlictTM which will provout u rceurreiico of theno re>;rettalilo
iiit iiliiilK.
I am, etc., SAMSHliltV.
litud Kalisl)ury tlms reiterated llie i)ositioii which had b<'ea talveii
tliat tlie I'liited States (ioveriiiiieiit liad no auihority to enl'oree its
iiiiiiiicipal laws u|)(»n any i)art of the seas outside of tlie or«liiiary tiiree
mile limit ; and in snpplut of that position he referred to the aetion of
the American (iovernnient in IHii'J protestin}? against pretensions on
the part o\' Russia to I'xenise what the United States (lovernment
then seemed to think were acts of sovereij>nty over these Hame seas;
and his arj-ument was, that the United States (Jovernment w(mld
lianlly pretend n<!W to exercise Jurisdictional riffhts which, when
asserted by Hussiii so nmny years aj^o, they protested ajjainst so vifjoi"-
ously. It will be observed that in this letter Lord Salisbury makes no
allusion to any supposed question of properti/. He nuikes no allusion
to the industry carried on upon the I'ribilof jslaiuls of Ruardiii}; these
seals, and lueserviny them for the uses of commerce. lie nuikes no
allusion to the (juestion whether i)elaKic sealing is rijjht or wronf; in
itself; but seems to consider that, whet lier rij^lit or wronj,', and wlu'tliei-
there is any property interest or not, the United States had no riyht
to cai)ture a vessel ui)on the hij>h seas, because that wouhl be an attempt
toenforcethcirmunicipal laws there. He puts himself ujion the yround —
not an unnatural one at all uiider the circumstances, in view of this
rci'ord of an American Tribunal of a libel uj>on a IJritish 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 higli seas, and has no authority
there, and he cites in favor of that position the prior action of the
American Government.
At this time, intbrmation of the facts having reached both Govern-
ments, and the liritish Govennnent having made a denumd, and L<u"d
Salisbury having put himself upon this ground, the question arose with
the American Government what it was best to do. What was the situa-
tion? Here was its projjerty, its industry, as it sujiposed — carrie<l on
for a century in the face of the whole world, and hitherto unmolested
by the world — an industry beneficial to itself, and equally benelicial to
the rest of nuxnkind; that industry and the herd of seals n])on which
it rested were threatened with certain destruction, as it was viewed by
the American Government, by this i)racticeof 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 tliat it was an exeniiso of authority which the
United States did not have over the high seas. What was the United
States Government to do under those circumstances? There was this
c()mplete 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
tlie 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 exce])tional 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
1
20
OttAI. AKdllMKNT OF JAMKS C. CAUTKFt, ESQ.
|>nictic« at oiiru, and cntitiiiiMMl to assert that authority, taking all tlie
coiisiM|uciic«>s. It is easy to sim^ what that iiii^ht hiivct led to. Surli u
]MmitioM, oiK'c taken by t lie United States itpon tiiut tjnestion, rould not
have been receded from. Tiie contrary jtosition tak(>n n|)on the other
side, by (ircat llritain, conid not perhaps Inive l)een recM-ded iVoin; and
the result of that, as the cause of tli(>. controversy and tlie Hourc(>s «)f
irritation were present at ull tinn'S, wouM have been tliat the acts
woidd be continually repeate<I, and would inevitably lead to liostiliti4>s.
Another «M»urse was to endeavor to settle the controversy without ii
resort to any discussion of the respective rif^hts of the (ioverninents
which were ininiediately cnn<-erned, and to settle it upon the assump-
tion that whatc^ver the ri;ilils w«'re, U|)()n the one side or the other, the
cdect tif this practice ol p(>la^i<' sealin^i' to which the United Htates
objected was so nniiiifestly injurious, and the praetit-e so inaiiifestly
wrouf;, that all (lovernnients would i>robal)ly assent to its repression,
un<l thus the dlt1i<'ulty would be avoided.
Mr. IWiyard «lid not believe, could not believe, that the practice of
l>elaj;{U! sealiuf; was a ri,mht one. He «lid not believe, he could not
belitn'e, that any civilized nation would think it toberij^ht. That was
his view; but the course which statesmen take is, in most instances
perhaps, a j,'ood deal governed by tlieir i)artieular per.somil character.
Mr. IJayard, I need not say, is a statesman of the most cnlifrlitened
tdiaracter and the most humane views. No nuin had a greater abhor-
rence for war tlian he. No man had a lower estiin ite of force as a
mode of adjusting international contliets; and in re cct to a (juestion
upon which, as he viewed it, there ought to be no illereiice anion^
enlightened men, there would b«5 no excuse on the i);iit of the (Jovern-
ment of the United States in so «lealing with it as to make a resort to
hostilities ev«'n probable. His course, therefore, at lirst was a con<!i]ia-
tory one. He determined to address the (lovernnients not only of
Great Britain, but the several Governments of the great nniritime
nations, put the (luestion before them, and invite them to consider the
matter and come to an agreement in reference to this business of pelagic
sealing — such' an agreenu'iit as would prevent theexterminaiion of tlie
seals — without any resort to irritating discussions upon (piestions of
right. That position of ISfr. Bayard i • taken by the first iK)te of a
deliberate character respecting tliis nnitter which lie wrote. It is found
on page 1<)8 of the volume to which I have been refeiring. This i)ar-
ticular note is one from him to Mr. Vignaud; but copies of it were sent
to the American Ministers in Germany, Great Britain, Kussia, Swe-
den and Norway and Japan.
Sir CiiAiiLES llus.SKLL. I think a copy of this was not sent to Great
Britain.
Mr. Cahter. I think it was.
Sir (!iiARLES lliissELL. I think not.
Mr. Cauteu. That is my impression.
Mr. Fos'J'Eit. Yes.
Mr. OAiiTER. 1 will read this note:
No. 256.] Dki'AUt.mknt ok State, Washington, A%iguat 19, 1887.
Silt: h'erentocciirrcnt'ea have (Irawn the attention of this Department to titc neces-
sity ol'takinf^ steiis for the better proteelion of llie fiir-sciil ti.slieries in Beliring Sea.
Witliont raisjim any (incstion as to the exceptional measures which the peculiar
character of the property in (piestion mijjht Justify tliis (ioverument in taking, and
without reference to any excejitional nuirine jurisdiction that nii(rht properly be
claiuied for that end, it is dcemeil advisable — and I am iusti'ncteil by the President
ttu to inform you — to attain the desired ends by iutenuitioual coijperatiou,
'J
ORAL ARfJlIMKNT OP JAMKrt C CARTKK, ESQ.
21
Great
1S87.
T10CC8-
i^ Sea.
|)e('iilinr
IX, and
pi^rly be
lesident
It iH well known thnt llic nnnmilaffil anil indiscrimiiiitt' killiiiixor hoiiIs !ii nimiy
iiiutH of till' woilil liiis dri\t'ii llinii Iroiii pliicn to )il:iii', and, by brcakinu iij) llioir
iiabiliiul H'Miits, has i;rcatly ndiiccd Ibiir iniinlur,
Uiidrr thi'Hc cjiciiniNlanrrM, and in view of tb<' coniinon intcn-Ht of all nations in
i>n'v»'Mtinu till- iinliMiriniinato di'stnntion and conMciintiit cxtciininiilio!! of an
animal wliirli contvilmttH so importantly to t'lo omnn'icial wealth and mineral nno
of m:mkind. yon an- luMcliy in»truct»'d to liraw tin* attention of tin- (ioM-rnnu-nt to
wliicii von ait' aciTcdited "to tho mibjcct, anil to invito it to .infer into unci! an
arranuement with tiio (iovernnient of the I'nited States as will jiievent the citizenn
of either loiintrv from killiiiK seal in Hehrini,' Sea at snc b times and iilace-*, and by
smii nnthods as at present are imrsiied, and whieh tlireaten tho speedy extermina-
tion of those Mnimiils and eons(!i|uent serions loss to mankind.
The ministers of the United States to (Jerniany, Sweib-n and Norvay, Knssia,
•lapan.and (Ireat Hritaiu have been eiicli similarly addressed on the snhjeet referred
to in tiiis instrurtion.
I am, etc., T. F. Bayaud.
Tliiit was tlio Jittitiido first tsikeii by Mr. IJayanl towartls otluT
nations. Ilr refers, in Uw. lir.st place, to tlic poctiliar (.'lisiiactcr of Miii
]»roi)('rty in question; aixl in reterriii;: to llie |>ecnliar cliaraeterof the
proiMMty lie, means ( hat it is an animal tiiat passes part of its life on tho
land and part in tiie sea. lie refers, next, to the exceptional marine
jiirisdiotioii whi<h the Tnited States mij,'ht claim to exenii.se for tiie
purpo.se of protectin}; a i)iece of iirojierty so ])eeiiliar in its character.
Jle ex])resses a tlesire to avoid di.scnssion of those suliiects, and lie
makes his ajipeal {generally to those who are in eharjie of the interests
of ma. .Kind to come to some international ajrreement by which an
animal so important in its benefits as the seal is may bo etfectnally pre-
served. That was the attitude taken by Mr. JJayard, eharaeteristie of
the man, contaliatory, aiid,asit seems to mo, the one which an enli^fht-
ened statesman shoiUd have taken under the circumstances.
The nations, other than (ireat Britain, who were thus addressed
answered this note, I believe I am correct in .sayinj?, in rather a formal
way, to the effect that tln^y were not specially interested in the subject-
matter of the controversy, but would take tlie suyfjestions into .serious
consideration and await such discussitui as miyiit be liatl. So far as
(ireat liritain is concerne<l, I think J may .say that the sujrfjestions
thus made by Mr. Jiayard were (!omuuinicated to liord Salisbury by
the American representative in Enj>]and at that time, my as.sociate Mr.
J'helps, and were at once accepted by hiui in the spirit in which tliey
were offered.
Senator Morgan. Mr. Carter, if you will allow mo, I think tliat tlie
diplomatic corresiiondence shows that -Fapan and Russia coincided with
theproposititui of the United States, and Norway and Sweden expressed
their concurrence iti the ideas presented in the note of Mr. IJayard, but
said that that (Tovernment was not at jiresent interested in the ques-
tion, anj'i sujjfjested that the convention should be so framed as to admit
other powers to Join .stib.sequently, if they saw juoper.
Mr. Carter. I should liave « bserved that Japan and Kussia made
a favorable response to these su^^'g'estions; but other nations not par-
ticularly interested answered, 1 think, in the way I suj»jT(>sted.
lint 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 accejited
by him in tlie spirit in which they were tendered. The first note which
I shall read iipon that point is that of Mr. IMielpa to Mr. liayard, Avhich
was dated in London, 12tli i!>rovend)er 1SS7; the letter of Mr. Bayard
having been dated 19th of August. Mr. Phelps says:
il
'>9
ORAL AROIIMENT OF .TAMKS C. CARTKl?, ESQ.
\ I
(N". filS.) LlKJATlOV ((I' TIIK I'MTKII S tatks,
LiiikIoii, yDrnnlicr 1 .', /SS7. ( K'cccivod NovcmhtT 22.)
Sill: IJcrorriufj to your iiistiiii'tions iniinhcrod (iSa, of Aiif^ust !!•, 1SS7, I linve now
to Hiiy tliat owiiij;- to the ahsiMici^ Ironi Loniloii of l.ord Siilislmry, sfM'rctary of state
lor foreign aHairs, it lias not been in my ])0\\ or to o1)tain Iiis attention to tlio subject
until yesterday.
I had tlu'ii ail interview with liim, in whieli I iiropostxl on the part of tlio fiovern-
nient of tlio United States that Ityiiintnal ajjreeinent of the two (ioverninents a eode
of rei;iiiations slionid lie adopted for the prescrviition ol' the seals in Helirinj; S<'ii
from destrnetion at imjiroper times and by im[iro])er nioaiis by the citizens of either
country; such agreement to be ('titirtdy irrespeetivo of any (Hiostions of conllictiufr
jnrisdi<'tion in those waltz's.
Jlis lordsjii]! ])r()in])tly acipiieseed in this proposal on the part of Great Hritain
.an<l siiK}i;este(l tliat I shonld ol)tain from i;iy (ioveriiment iuid submit to him a sketch
of a system of rcfjidations which would bo adoijuato for the purpose.
I have therefore to re(|nest that I may bo furnished as i^arly as possible with a
draft of such a eode as in your judf^iiieiit shonld be ado])ted.
J would suf>;n<'st also that eojiics of it be fiiniislied at the same time to the minis-
ters of the liiilcd States in (ieiinany, Sweden and Norway, liussia, France, ami
.)a]ian, in order that it may bo under consideration by the Governinents of those
countries. A p-Mtual a<j;reement between all the (iovornments interested may thus
bo reached at i. iarly ilay.
I have, etc., E. J. Piiki.ps.
I iissinm> from tliis that Mr. Phelps communicated the instructions
he had received from Mr. JJayard, and that in tliat way the note of Mr.
Bayard was contmunicated to the Government of Great Britain.
Sir CUAKLES ItiissELL. Tiiat is correct, substantially.
Mr. (lAiiTEii. And the learned arbitrators will perceive from this
that in carryiiijj out the instructions whicjli he had received from Mr.
Bayard, Mr. Thelps proposed to Lord Salisbury the establishment of a
code of rejiulations for the restriction of pelagic sealing" by citizens of
either country during certain times. The idea was a code of regula-
tions establisliing what Mas called a "close time''; and to that sugges-
tion, wiiicli was designed to carry out ]\Ir. Bayard's object of preserving
the seals by international agreement, a i)r()mpt assent was given by
Lord Salisbury. What was awaited, therefore, was the framing by the
United States of a code of regulations sutticient to carry out the objccit
in view. Mr. I'helps upon receiving that comnumication, presumably
at least, — ])erhaps his letter may be somewhere printed, but I do not
know that it is — infoimed Mr. liayard of this fact, and then Mr. l>ayard
addresses a further coninuuncatiim to him. This is found on page 175.
The President. IVIr. (Jart««-. I would suggest that before we begin
this new (puisticm we might rest a while.
The Tribunal thereupon took a recess for a short time.
After re-assembling.
Tiu^ President, said: Mr. Carter, will you proceed?
Mr. Garter. Mr. President, when tlie Tiibunal rose for its recess, I
was caUing the attention of the learned Arbitrators to the course of
the <!orr(-rfi>on(lence which arr,se in reference to the seizures f)f ISritish
vessels. 1 had stated the conciliatory action which Mr. Bayard, the
American Secretary of State had ciiosen to take, the sending of com-
munications by him to the Anu'rican Ministers to the various maritime
nations, and tiie response which had be(m received to the communica-
tion thus ma<le from Lord Salisbury, the Biitish Minister of h'oreign
A11ai"s. 1 had read, as showing that response, the uote o^ Mr. Phelps
to Mr. Bayard of November 12, 1887.
:
ORAL ARGUMKiNT OF JAMES C. CARTER, ESQ.
23
|cess, I
use. of
jUitish
1(1, tlio
com-
Iritime
Iniiica-
*helpa
IMr. Bayard liaviiijj received that cominuniration, was evidently jrmti-
fcd at the piospeet <»f an aniical)le solution of the difficulty, and he
addressed this note to Mr. Pheljis on tlie 25th of November, 1887:
No. 733.] DKi'AnTMKNT OF State, Washington, Xovei.iher -?■'>, 1SS7.
Sir: Ymir No. OIH, of tin? 12th instant, stating tho n'snlt of your interviews with
Lord Sali8l)iiry on thu siibjcrt of the seal lisherics in Hcluinfj; Sea, is receiveil.
Tho favoralllo it^sjionHe to onr Hnnfjcstion of niiitiially ajfieeinj; to a code of regu-
lations is very satisfactory, and the subject will have immediate attention.
I an), etc.,
T. F. Ha YARD.
Yon will remember that Mv. IMielps requested of Mr. Bayard a pro-
posed (Jode of Rcsulations. On the 7tli of February, 18S8, Mr. Bayard
again addresses Mr. rhel])s, and in liis communication gives the prin-
cipal features of a ])roposed Code, and it is somewhat important to con-
sider them. I read from the note:
Mr. lia;i<i.i d to Mr. Phelps. ■
No. 782.] Depart. I KNT of State, U'ashintjton, Fehruarji 7, lf!Sfl.
Silt: I have received your No. G18, of the 12th of X<ivenibor last containing an
account of your interview with Lord Salisbury of tho preceding day, in which liis
lordship expressed accpiiescence in my proposal of an agreement between the United
States and (Jreat Britain in regard to tlio adoptitm of concurrent regulations for the
jireservation of fur-seals in I'ehring Sea from extermination by destruction at
imi>ro]icr seasons and by improper metliods by the citizens of either country.
In response to his lordships suggestion that this Government submit a sketch of a
system of regulaticms for the purpose indicated, it may be expedient, before making
adcHnito i)roi)ositioii, to descrilie some of the conditions of seal life; and for this
purpo.se it is bidieved that a concise statenunt as to that part of the life of the seal
wliich is spent in Hehring Sea will l)e sullicient.
All those who have Iuad(^ a stiuly of the se.ils in Behring Sea are .'igrced that, ou
an average, from five to six months, that is to say, from the middle or townrd the end
of spring till the middle or end of October, are spent by tliem in those waters in
breeding aixl in rearing thtdr young. During this time they have their rookei ies cm
the islands of St. Paul and St. George, which constitute the I'ribilof group and belong
to the United States, and on tho ('orumauder Islands, which belong to Russia. But
the number of animals resorting to the latter group is small in comparison with that
ri sorting;; to the former. The rest of the year they are supposed to spend in the open
sea south of the Aleutian Islands.
Their 'uigrati':n northward, which has been stated as taking place during the
spring an(' till the middle of .luuc, is made through the numerous passes in the long
chain of tho Aleutian Islands, above which the courses of their travel converge chiefly
to the Pribilof group. During this mi.nration the female seals are so advanced in
pregnancy that they generally give birth to their young, which are commonly called
pups, within two weeks after reaching the rookeries. Between the time of the birth
of tlie pups and of the emigration of the seals from tho islands in the autumn tho
females are ot>('upied in suckling.their young; and by far the largest part of the seals
fouml at a distance from the isliinds in I'tdiring Sea during the summer and early
autumn are females in search of food, which is made doubly necessary to enable them
to luckh? their young as well as to supjiort 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 c<uiinionly called, require little food while on
the islands, where tliey remain guarding their liareius, watching the rookeries, and
sustaining existence on tho liirge amount of blubber which they have secreted beneath
their skins and which is gradually absorlied during the five or six succeeding
months.
Moreover, it is impossible to distinguish tlie male from the female seals in tho
water, or pregnant females from those that are not so. When the animals are killed
in the water with tireanns iiumy sink at once and are never recovered, and some
authorities state that not more than one out of thri-e of those so slaughtered is ever
secured. This may, however, be an overestimate of (he numlter 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 tho race. There appears to be no ditl'erence of opinicm on this
8uli,j(\ct among experts. And the fact is so clearly and forcibly stated in the report
of the inspector of iisheries for British (,'olumbia of the 3(8t of December, 188G, that
I will quote therefrom the following pertinent piissage:
24
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
There wero killt-d this year, ho far, from 40,000 to 50,000 fur-seals, which have heen
taken by schooners from San Kraneiseo and Victoria. The greater nnmber were
killed iu Hehrinf; Sea, and were nearly all eowa or female seals. This enormous catch,
■with the increase which will take place when the vessels fitting np every year are
ready, will I am afraid, soon deplete our fur-seal iishery, and it is a great pity that
such a valualile industry conld not in some way be ]>rotected. (Report of Thomas
Mowat, inspector of fisheries for l^ritish Colnmliia; 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 Hritain, 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 tliat between the 100th
degree of longitude West and 170 of longitude East from Greenwich.
]rere is longitude 170 (indicating on map) East, and here is h)ngitude
1(50 West. There is the TjOth degree of latitude. Jt is, therefore, from
this point 170 East to KM) West (indi<'ating on map). All Nortii of that
parallel of 50 degrees of latitude, tiiid between KJO East and 170 West
longitude, was the proimsed 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 Bussell. That will exclude, I think, the Commander
Islands?
Mr. Carter. Apparently it would exclude the Commander Islands.
To y)reveut the killing within a marine bolt of 40 or .50 miles from the islands
during that period would be iuetfectual as a preservative measure. This would
clearly be so during the a])))roach of the seals to the islands. And after their arrival
there such ai limit of protection would al.so be iusutticient, since tiie rajiid ])rogr(;ss of
the seals through tiie wat(^r enables them to go great distances from the islands in so
short a time that it has btsen calculat<Ml that an ordinary seal could go to the Aleutian
Islands .and back, in all a distance of 360 or lOO miles, in less than two days.
On the I'ribilof islands themselves, whore the killiim is at ])resent under the
direction of the Alaska Commercial Company, which by I he terms of its contract is
not permitted to take over 1()(),()00 skins a year, no females, pM])8, or old bulls arc
over 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 tiie coming of the females.
As the voung itulls arrive they are driven away by the old bulls t<> tiie 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 perforate*'., and dis(Timination is
exercised in each case.
That the extermination of the fur-seals must soon take place unless they are pro-
tected from destruction in Hehring Se.'i is shown by the fate of the animal in other
parts of the world, in the absence of concerted actirni among the nations interested
for its ])reservation. Formerly many thousands of seals were obtained anninilly
from tile South racific Islands, and from tlu ".oasts of Chile and South Africa. Tlu^y
were also common in the Falkland Islainb, and the adjacent seas. But in those
islands, where hundreds of thousands of ski. is were formerly olitained, 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 eomplettdy breaking up extensive rookeries.
At the irre.sent time it is estimatcMl that out of an aggregate yearly yield of 185,000
seals from all parts of the globe, over 180,000, or more than two-thirds are obtained
from the rookeries on tlie American and Russian islands in Hchring Scni. Of the
remainder, the larger part are taken in Itehriug Sea, although such taking, at least
on such a scale, in that (juarter is a comjiaratively recent thing. Hut if tlu^ killing
of the fur-seal there with firearms, nets, an<l other destructive implements wisre
jiormitted, hunters would abandon other and exhausted places of ])ursuit for the
more proilu<^tive fiidd of Hehring Sea, where extermination of this valuable animal
would also ra])idl\ ensue.
It is manifestly for the interests of all natioiis that so deplorable a thing should
not be allowed to occur. As has alread\ been stated, on the I'ribilof Islands this
GovcTument strictly limits the number of seals that may be killed under its own
lease to an .\inerican eomi>any; and citizens of the Uuite<l States have, during the
past year, been arrested and ton Americau vessels seized for killing fur seals in
Behring Sea.
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
25
Enpflaiul, however, haw an cspcninlly ffroat iiitprost in this matter, in addition to
that wliifh sIk! must feel in preventing tlie ('xterniination of an animal wliicli eon-
trilmtes HO niiieh to tlio nain and comfort of her i)eople. Nearly all undressed fur-
seal skins an; sent to London, where they are dressed and dyed for the market, and
where many of th«Mn are sold. It is stated that at least 1(),0(U) people in tliat city
find i)rolital)le employment in this work; far more than the total nuniher of |»eople
eiifiafjed in liuntin^ the fur-seal in every i)art of the world. At the I'rihilof Islands
it is lielieved that there are not. more than 400 persons so enr;ai;ed; at Commander
Islands, not more than 1^00; in the Northwest coast fishery, notnn>re than 5l'5 Indian
hunters and lOU whites; and in tlie Capo Horn tishery, not more than 41)0 persons, of
•whom ])erhapH 300 are tJhileans. (Jreat liritain, therefore, in coopcratinj; with the
United States to ])rovent the destruction of fur seals in l{(lnini>' Sea woulil also ho
perpetuating an eKtensive and valuiihlo industry in which her own citizens have the
most lucrative share.
1 incloHO for your information copy of a memorandum on the I'ur-seal (islniries of
tlie world, prepared hy Mr. A. Howard Clark, in rcsixuise to a re(iucst made by (his
De])artnn'nt to the II. S. Fish Commissioner. I inclose also, for your further infor-
mation, copy of a letter to me, dated December 3d last, from Mr. Henry \V. I'.lliott,
who has sjient much time in Alaska, en^ajiod in the study of seal life, ujjon which
he is well known as an authority. I dosing to call your especial attention to what
is said hy Mr. Elliott in respect to the new method of cattdiing the S(;als with nets.
As the subject of this dispatch is one of nieat importance and of iinmodiato
urgency, 1 will ask that you give it as early attention as i)08sihle.
I am, etc.,
T. F. Bayahd.
That wiis Mr. Bayard's numher 782. Mr. Phelps acknowledges this
letter on the 18th of February 1888, thus:
Mr. Phelps to Mr. I'ayard.
|are pro-
in other
torested
nnually
They
In those
Ire liave
In some
Kv years
1 18.">,000
>tained
I ( )f tlio
it least
Ikilling
|8 wfiro
for the
animal
Ishoiild
Ids this
f.s own
pig the
eais in
No. 690.] Lk.jation ov tiik Unitko Statks,
London, Fehritarn IS, ISSS. (K'eceivcd Fcl)iuary 28.)
Sin: I received yesterday your iu-truction No. 782, under dat(^ of I'\'l)ruary 7, rela-
tiv(! to till' Alaskan seal (islu i-ics. I in.,!iediately addressed a note to Lord Salisbury,
inclosing for his peru.sal one of the jirinted copies of the instruction, iind rcijuesting
an appoiutineiit for an early interview cm the subject.
I also scut a noti.' to the Russian ambassador, and an interview with him is arranged
for the L'lst instant.
The whole matter will receive my immediate and thorough attention and I hope
for a favorable result. Meanwhile I would ask your eonsidcrarion of the manner in
which you would iirojiose to carry out the regulations of the lislierics that may ho
agreed upon liy the countries interested. Would not legislation be necessary ; and,
if so, is there any hojio of obtaining ifc on the part of Congress^
I have, etc.,
E. .7. I'liKi.fs.
Suhsoqnotitly, on the L»r»th of February, he again addresses Mr. Bay-
ard, and this is iiis note;
Mr. riiilpH to Mr. Bayard.
[Kxtr.act.]
No. 692.]
LKUATION ok TIIK UNITICO STATF.fl,
London, Fcbiiiavji .'•), ISKs'. (Iv'eceived March 6.)
Sik: Referring to your instrnctions, nnmbered 782, of February 7, 1K88, in refer-
ence to the Alaska seal fisheries, and to my rcjdy thereto, niinihcred (iiH), of Febru-
ary 18, I have the honor to inform you that I have since had interviews on the
subject with Lord Salisbury and witli M. de Staal, the Russian ambass.idor.
Lord Salisbury assents to your proposition to establish, by mutual arrangement
between the governments interested, a elosir time for fur seals, between April 15 .ind
November 1, and between KiO^ of longitude west iiud 170 ' of hmgitndo east, in the
Hehring Sea.
He will also join the United States (lovorninent in any preventive measures it may
ho thought best to adopt, l»y orders issued to the naval vessels in that region of the
respective governments.
I liave this niorniiig telegraphed you for additional printed copies of instrnctions
782 for the use of Her Majesty's Goverumeut.
26
ORAL ARGUMENT OP JAMES C. CARTER, E^^.
Tho Rnssinn anihftssndor coneiirs, so fnr as IiiH personal opinion is cnnrerned, in
tlio propriety of the ])ropoHO(l measures for tho protcM^tion of tiio seals, and has
proniiHeil to coinninnieato at once with his Government in vejjard lo it. I have fnr-
nished him with copies of instructions 782 for the use of his Govornniont.
I have, etc.,
E. J. Phklps.
Tlie learned Arbitrators will perceive from Mr. Phelps' note that the
proi)osed dose time ext^'juling over the area between 170 East longi-
tude and KiO West longitude, and beginning at the 5()tu ])arallel of
latitude, and in(5lutliug everything North, was at once assented to, and
that pelagic sealing within that area was to be prohibited between
April inth and November 1st.
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 trefity or convention : but only that the proposition of
Mr. Bayard c-ontaining tliat measure of restriction was at once assented
to by Lord Salisbury without objection, although further communica-
tions might be needful before the measure was i)ut in the shape of a
treaty; nor do I mean to intimate that Mr. Phelps states tliat the
agreement was an ab.solute one, precluding any withdrawal from it.
Mr. Bayard again addresses Mr. Phelps on the 2nd of March, 1888,
.and in this comnmnication 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.] Depaiitment of State, Waahington, March g, 188S.
Sir: I have to aclcnowledgo the receipt of your No. 6!)0, of the 18th ultimo, in
relation to tho Alaskan seal fisheries, and have pleasure in observing the prompti-
tude with wliich the business has been conducted.
It is lioj)ed that Lord Salisbury will give it favorable consideration, as there can
be no doubt of the importance of preserving tho seal fisheries in liehring 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
8])ecial measures of its own the exceptional character of tho property in question
might require it to take in case of the refusal of foreign powers to give their coiip-
eration.
Whether legislation would be necessiiry to enable the United States and Oroiit
Britain to carry out measures for the prot<!ction of the seals wonld depeiul much
upon the character of the regulations; but it is probable that legislation would bo
recjuired.
Tlie manner of protecting the seals would depend upon the kind of arrangement
which (Jreat Britain wonld 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 jirotectitm. As it api)f!ars to this
Goveniment, 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 tlie seals
need not bo complicated by considerations which are of great importance in high-
ways of conunerco and render tlui interference by the oiticers of one Government
witii 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, tho
United States and Great Britain have, for a common purjiose, abated in a measure
their objection to such iuteri'oronce 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,
1W)2, 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 tho world in which visitation and search of tho
merchant vessels of one of the contracting parties might be made by a n.vval vessel
of tho other party. In the present case, however, tho range within which visitiv-
tion and search would be re<|uircd is so limited, and the commerce there carried on
BO 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 Kbould be by the naval vosaels of the contracting parties.
\
Bgonient
|e polic-
wbich
I to this
jited in
lie Hetils
li liip;h-
Irninout
aven in
1, tho
Heusnro
naval
April,
slave
con-
ed as
3f tho
I'ossol
lisita-
tod on
l-trade
Ipulico
ORAL AllGUMKNT OP JAMES C. CAIlTEU, ESQ.
27
In regard to the trinl of oflVnders for violation of the pro]iosed rofjnlationa, pro-
vision niijjlit ho niadf for such trial by handing over tho alleg<Ml olVonder to tho
courts of liis own coimtry.
A i>recodent for such |ii-occdnrn is found in tho treaty signivl at tho Hague on May
6, 1H82, for regulating tlio police of the ^orth Sea fisheries, a copy of which is
inclosed.
I am, etc., T. F, IUyard.
Tho Arbitrators will see that, so far, the diplomatic corresi)()n(lon(;e
has resulted in this; tiiat tlie first pi<)])osal to (Ireat Britain of conctir-
rent re^nlations was acceded to by Lord Salisbury, and a tlraft of i)ro-
posed ref>ulations was requested by Mr. Phelps from Mr. Jiayanl, in
order that lie mi^'ht more distinctly state the terms of the proposal to
Lord Salisbury, ilaving obtained a draft of the ])roposed regulations,
which provided for a close season over an area which 1 have already
described, that was submitted to Lord Salisbury and met with his
prompt assent. That, it will be perceived, made a "close jieriod"
between April 15 and November Ist.
It was shortly after this, and if 1 am correct in my recollection, on
or about the 5tii of April, 1888, that Mr. Phelps left London and wcsnt
to the United States for a while, and the affairs of the mission in Lon-
don were left in charjje of Mr. White. There are some letters from
Mr. White to Mr. Bayard which show the further progress of the
negotiations. Mr. White, on the 7th of April, 18S8, addresses Mr.
Bayard. This is a telegram. Mr. White stated that on the following
Thursday he was to meet Lord Salisbury and M. de Staal, etc:
Mr. White to Mr. Bayard.
[Telegram.]
Legation of thr Unitkd Statks,
London, April 7, 1SS8. (Kcocived April 7.)
Mr. White stated that on the following Tliursday he was to meet Lord Salisbury
and M. dc Staal to discuss tho question of the protection of the seals. On Ajiril 7
he bad b;id an interview on tho subject with M. de Stiial, from wiioni ho learned
that tlui Russian (iovernnient wislied to include in tlie proposed arrangeuieut tiiat
part of iJehring 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 ad«lresses this letter to Mr. Bayard :
Mr, White to Mr. Bayard.
No. 720.]
Legation of the United States,
London, April 7, 1SS8. (Received April 17.)
Sir: Referring to your instrnctions numbered 782 of February 7 and 810 of March
2, resjjectiug the jirotection of seals in Beliring Sea, I have tho honor to ac(|uaint
you tliat I received a private note fron\ the Marquis of SaliH)>ury this uioriiing
stating that at the reciuest of the Russian euil)ass.ador he had appointed a meeting
at the foreign ollico next Wednesday, 11th instant, "to discuss tlie question of a
close time for the seal fishery in Hetiring Sea," and expressing a hope that 1 would
make it convenient to be present, and I have replied tliat 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 woiild not
reach liOudon until to-night or to-morrow, and that he was abont to leave town
until next Wednesday, but meanwhile he could say that his Government would like
to have the regulations whidi might be agreed upon for Behring Sea extt'iided to
that ])ortion of the latter in which the Couniiandi-r Islands are situated, and also to
the Sea of Okhotsk (in which Rol)ben Island is situated).
As both these jjlaees are outside the limit lai<l down in ycmr instruction numliered
7HL> (170'J of longitude east from (Jreenwich), 1 have thought it best to send ycm tho
telegram, of which 1 inclose a copy herewith.
I am; etc., Hknby Wuitk.
28
ORAL ARGUMENT OF JAMES C, CARTER, ESQ.
Then on the 20(h of April, 1888, Mr. Wliite again writes Mr. Bayard:
Mr. While to Mr. Ilaj/ard.
No. 725.]
Lkgation of the Unitkd States,
London, April :?fl, 1SS<S. (Rccoivisd A])ril 30.)
SiK; liclViiin'r to your Instrnrtions Noh. ()85, 782, ami 810, to Mr. riu'ljjs's dis-
jtiitclios Nos. (il.-i iiiul ()■'(). and to snliHcipKiiit correspondence. I liii\o the honor to
ii(;(|u:iint you tliat. J talli d at the lorcMfjn oflico on the ItJtli instant for t\u'. imrpose of
discnsrsing witli tlie. iMar(inis of Saliishnry and M. do Staal, the Russian embassador,
the details of tiio proposed conveutional arrtiiif^emcnt for tho jjrotoi'tion of seals in
lieriii}; Sea.
M. do Staal expressed a d(!sir<', on behalf of his Government, to inchubi in tho area
to b«! protected by tho convention tin? Sea of Okhotsk, or at least that ]iortion of it
in which Robben Island is sitnatcd. there boiiiff, ho said, in that rettion lar;;o num-
bers of seals, whoso destruction is thieatened iu the sanio way as those in Hehring
Sea.
He also urged that measures be taken by tho insertion of a clause in the proposed
contention or otherwise, for prohibiting the imjiortation, by mercdiant vessels, into
the seal-i)rotected area, ibr sale therein, of alcoholic drinks, firearms, gunpowder,
and dynamite.
l^ord Salisbury expressed no opinion with regard to tho latter proposal, but, with
a view to meeting tluj Russian Government's wishes res|)ecting tho waters surroinid-
ing Robben Island, ho suggested that, besides tho whohs of liehring Sea, those
porti,)ns of the St!a of Okhotsk anil of the I'acilic Ocean north of north latitude t7'^
should be incluib'd in the proposed arrangement.
Tliis sngrgestiou of Lord Salisbury's, thereforf «^;arrieil the protected
area further South.
JNIr. Phelps. The suugestiou of M. de Staal, you mean.
Mr. Carter. No, of Lord Salisbury. Lord Salisbury's suggestion
carried the protecited 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 iiu'lude the whole of that i)art of the racilic Ocean, so
as to embrace not only the Commander Islands, but also Kobben Island
in the Sea of Okotsk.
His Lor<lship (that is Lord Salisbury) 'ntimated further tliat the
period pr(»posed by the United States for a c'ose time from April IHth
to November 1st might interfere with the trade longer than absolutely
necessary for the protection of the seals, etc.
Tlie learned Arbitrators will perceive that at this point theconununi-
cating dii)lon)ats were so far agreed upon the subject that it was cou-
<M>ivc(l by Lord Salisbury to be in a condition for the preparation of a
draft convention.
Afterwards, on the first of INfay, Mr. IJayard addresses Mr. White:
and it is in answer to the last note of Mr. White, wJiich I have just
read :
Mr. Brttjard to Mr, Wliiie.
No. 8G4.] I)Ki'Ai!TMi'..\r ok Statk, Wmhington, May 1, ISSS.
Siif: Your dis])atch No. 72r> of the liOth nltinio stating the result of your interview
with liord Salisbury and the Russian embassador relative to the protection of steals
in liehring Sea, and requesting further instructions as to their proposals, has been
received.
As you have already been instructed, the Department docs not object to tho inclu-
sion of the Sea of Okhotsk, or so much of it as may be. necessary, in tho arrango-
ment for the ]irotection of the seals. Nor is it thought absolutely necessary to insist
on the extensi(ni of the close season till the 1st of November.
Only such a ])eriod is desirecJ. as may b<! re(|uisite Ibrthe end in view. ]{utiu order
that success may be assured iu the elforts of the varioura (Governments interested in
tho jn-ottMtion of tho seals, it seems advisable to take the 15111 of October instead of
tlu^ Isl as the date of the closo season, although, as I am now advised, the 1st of
November would be safer.
\
\e just
Is hcim
inclii-
1','in <>■«'.-
insist
1 order
lU'd ill
luail uf
list of
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
29
l\rr. linyard now siijij^ests lliat it bo niiido Uw, ir)tli of October, split-
tin;^' Ok' (liilcrt'iice, iilthougli lit' says the liivst of November Avouhl bo
Siller.
Mr. \Vliit«, ill bis next note to Mr. Bayard mentions a furtli<'r sta;x«
wlijcli tlie matter luul then readied. Oji the liOth of June, 1888, ho
thus writes:
Mr. H'liile lo Mr. Buyard.
No. 78C.]
liKdATION OK rilK UmTKI) StATKS,
London, •tiiiii- M, ISSS. (Iicfcivt'il ,)uiu< 30.)
SiH: I liiivc tliti honor to iiit'orni you that I availcil myself ol an parly opitovtimity
to iU'i)naiiit tlio Maiiiuis of Salislniry ami the Kihssiaa ambassador of tlii' it'ci'i|(t of
your iiisli'uctions iiiuiiIktciI Siil, of May H, and slifirtly afterwards (May Ki) his
t'scidifiwy and I cuIIimI to;j;cllitr at the (brtMjfn ollico for tiic iiur|iosi> of discussiiif?
wilh his lordshiji the tcrmsof the jiroposcd ronveiition for the iirott'ction of seals in
UchriiiiC Sea. iJiifortiinalely Lord Salisliiiry had Just received a eonmimiieation
from the Canadian (iovernment statiii}r that a incmorandnm on the Hubjeel would
^liortly bo forwarded to London, and exidi'ssiiij:; a hoiio that pcndinfi tlie arrival of
that tlociiment no further steps would be t.ikeii in the matter liy Her Majesty's (iov-
ernment. L'lider these eireumslanees Lord Sali.^bury felt l)ound to await the Cana-
dian memorandum befort^ i>roeee(iin<.' to dralt the eonvention.
1 have ini|nlied several times wiiellier this eommnnieatioii from Canada had been
received, but it has not yet eonu; to hand. 1 was informed to-day i>y Lord Salisbury
tii;it annrment telej;rani had been sent to Canada a we(d< a^o with rcspiict to tlio
(bday in its expedition and that a vejjly had been received by the secretary of statu
for the colonies statinu; that tlie matter would b(^ taken up immediately. I hope,
thereforo. that sii(irtl> after Mr. I'helps's return this (iovernment will be in a con-
dition to ajiree njion th(« terms of th(^ projiosed convention.
I have tlie honor to inclose for your information the co]»y of a (luestion iiskud by
Mr. (iourley and answeretl by Sir .lames lerf;usson in behalf of the iJritish (iovera-
ineiit with respect to the st'al lishing in liehring Sea.
1 have, etc., HiCNitv Wiutk.
(For inclosuro see Senate Ex. Doc. No. lO'i, Eiftieth Congress, second session,
p. 103.)
At this point an obstacle was for the lirst time inter[)ose(l in the i)ro.i;'-
less of the ne^iotiations which otherwise wcuild in all jirobability have
resulted in a liiial agreement between the two countries for the presiir-
valioii of the seals by establishing' a (jlose season over the aresi nien-
lioned, from the tiist of April to the 15tli of October.
Whether that protection would have been adetjuate is another (piestiou
which 1 do not stop now to discuss; but that the couveiitiou would,
exce]>t tor the obstacle mentioned, have been couchided substiiutially
s('<'uriii^' those terms it seems to me there can be no rciisonablo doubt.
Tlie obstacle to it arose from a protest on the part of Canada. Lord
Salisbury had— very properly, undoubtedly, as the (^auiulian people
were more interested in the prosecution of pelagic sealing than otliers —
scut 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 objetjting to the linal con-
clusion of any such proposed arrangement. 1 think it may be worth
while, in noting this response of Canada, to take a glance at the terms
in which Lord Salisbury made the communication to the Canadian
(ioveriuuent, which will 'be found in the Ai>pendi.\, Vol. 3 of the Brit-
ish Case, p. 190:
The Marquis of Salisbury to Sir li. Morier.
No. 121.] FOHKIGN Ofi'ICK, April 16, 1888.
Siu: The Russian Ambassador and tlio United States Chargt- d'Atfaires called
uiion me this afternoon to discuss the question of the seal fisheries in Hehring's Sea,
which had been brought into prominence by the recent action of the United States.
The United States Goverunient had expressed a dot iro that some agreement should
be arrived at between the three Goverumeuts for '.he purpoao of prohibiting the
1
N
30
ORAL ARGUMENT OF J^i'^ES C. CARTER, ESQ.
filiiiightor of tht) HealH (liii-in^ t\u: time of broediii^; ami at iii)' roiiiicBt, M. du Staal
Lud obtaiuud iuHtructioiiM from Ium (ioveriiimMit on that r|iicsti<iii.
At tluH ]irelimiiiai'y diHciiKHioii it waH decided ]>rovisi()iiall.v, in order to furnish u
batiiH for negotiation, and witliont dollnitively ]>ledging our UovernmentH, tluit thu
Hpacu to bo covered by the pro|)osed Convention Hlionld bo the sea between Americ^a
and HiiHsia. north of the 47tli degree of latitude; that tbe ch>He time Hhould extend
from the 15th Ajiril to tlio 1st November; that during that time the Hlangliter of all
Heals should be forbidd.-ii ; and vchhoIh engaged in it should be liable to Hin/.uro by
the cruizers of any of the three powers, and should be taken to the ]t()rt of their
own nationality for condemnation; that the triiriic in arms, alcohol, and powder
Hhould 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 Marutime I'owers of tlm nortlurn seas.
The United States Chargi'- d'Atlaires wiis fxccediugly earnest in jiressing on us the
importan<;e of dis])atch on ac(;ouut of the inconceivable slaughter that hail been and
>vas still going on in these sens. He staled that, in atldition to th" vast <iuantity
brought to nuirket, itwasii c<Mumon ])ractic(t for those engaged in tlie trade to shoot
all seals they might mei;t in the o]ien sea, and that of these a great number sank, so
that their skins could not be recovered,
I am, etc., Salisbury.
Tlie learned Arbitrators m ill now see the nninner iu which the negoti-
ations i)en(lin}>- between the two Governments was notified to the
Ciinadian (iovernnient.
Sir OiiARLKs KussELL. That was to Sir liobert Morier. That was
to Hnssia, not to Canada.
The President. Sir Kobert Morier was in St. Petersburfc.
Mr. Fosteu. a copy of the same note was sent to Sir Lionel Sack-
ville West.
Mr. Carter. What Sir Charles Jlnssell ssiys may be true; but a copy
of the same note was sent to Sir Lionel Saekville West at Washington.
Sir Cuarles Kussell. Yes; it was sent to Washington, not to
Canada.
The 1'resideni'. 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. Caktkr. Yes; he was in Washington; but the evidence that
the communication was sent to Canada is not derived irom this note of
Salisbury to INlorier, and which was also sent to Sir Lionel Sackville
West. I am in error in stilting, if I did state, that that was the form
iu which Canada was apprised of the state of negotiations; but that
at this time Canada Avas so apprised is stated in the communications
which 1 have read.
Mr. Justice Uarlan. You will find on page liH) of the British Case,
Appendix, Vol. Ill, the letter from the Colonial Oflice to the Foreign
Oflice, 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 Caiuxdian Government is
on page 212 of that volun)e.
Mr. Carter. On page 109 of the third volume of the Appendix to
the IJritish Case, is found the following communication from the British
Colonial Ollice to the Foreign Olhce:
Colonial Office to Foreign Office,
No. 128.] DOWMNC Sthket, Jpril -25, 1SS8. (Received April 26.)
Silt, I am directed by I^ord Knutsford to acknowledge the receijit of your letter
of the 20th instant, transmitting a copy of a dis])atch addressed to Iler Majesty's
Ambassador at St. Petersburg respecting the proposed estabUsbmeut of a clouc tiu4<}
for seals iu Bcliriog's Sea.
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
31
And tliat disi)sit.<'h is the samo as the ouc from tlie Marquis of Salis-
bury to Sir Itobert MoriiT, so tluit it did get from the Foreifjn Ollicc of
tlie liritisli Governmi'iit to the Colonial Oflice uud the receipt of it is
thus acknowledged.
The dispatch continues:
III reply, I am to iiidoHe, for thit information of tiie Miirquis of Salisbury, a copy
of tlus cxttMider of n U'Ai'urtun whii'li was sent to tlio (jovernor-Gencral of t'ana<lH,
on liiH l.orilsliip'H HU<;;rG.>4tion, in<|nirin!; wliutkur the Dominion Uovernmont were
iiwart) of any olij(3('tion to tlio ]»roiio8(Ml urran};ein«'nt.
I am alMo to iiirloso a <'o|iy of a tllHpatch from lioril lianndownu, in the two con-
<,'liiilin<r iiara<;ra|ilm of which ho [tointH out that the proliable otfoct of tliu proposed
('loHt< tiiiK! on th(> operations of the Cauatlian acalers would he to exclude them coui-
jtletcly from the rij^htB wiiieh they Lave until lately enjoyed without question or
moleKtation.
In thcNc circumstances, it is probable that the United States ]iri.;>(>sals may not
be acce])ted by Canada without reserve, and Lord Knutsford would su^jrest that,
)icinliiiK the recei)>t of tlie (diservations of the Dominion (iovctrnment in response to
the invitation contained in his dis])atch of the HtU March, referred to by Lord Lans-
ilowne, no tinal action should be taken in tlio matter.
1 um, etc.,
RouRitT G.W. Ueuueut.
Case,
ix to
ritish
26.)
letter
icsty's
|c tiwo
Lord Knuiaford to the Marquis of Lanadowne.
[Iiioloauro 1 in N" 128.]
Downing Street, April St, ISSS.
My TjOUP, I have the honour to acquaint yon Uiat I have this day tele^^raphed to
you, with reference to your dispatch of the 9lh instant, that negotiations are pro-
ceeclinjr lictween liussia, tlic United States, and (ireat liritain 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 ]>arallel of latitntle between the coasts
of Russia and America, and imiuirod whether your (iovernmeut was awar of an;*
objection to the ju-oposed arrani^ement.
I added that, of course, as regards Canadian waters, Canadian legislation would
be necessary.
1 have, etc., KnutskoHD.
AVe now i»crceive that the conchision of the negoti.ations —
Sir Charles Ki^ssell. I beg pardon; but tlie dispatch referred to
from Lord Lansdowiie was on the !>th of April.
ISIr. Carter. \Vould»you like to have me read it?
Sir Charles Kussell. It precedes the one you have read in point
of time. 1 do not wish, however, to put you to any inconvenience.
Mr. Cartf.r. This is the enclosure from Lord Laiisdowne who was
the head of the Colonial Oflice in London:
The Marquis of Lansdowne to Lord Knutsford.
[luclosuro 2 in N" 128.— Extract.]
GovEHNMKNT HousE, Ottaiva, April 0, 1SS8.
In reference to my despatch of the 29th March, I have the honour to inclose here-
with co]>y of a telegram, dated the 5tli instant, from the Attorney-General of British
Columbia to, Sir .John Macdouald, acquainting him that my telegram, of which a
c()]iy was sent to you in the above despatch, bad been ])ublished in the ]>rovincial
l)res8 as a warning to sealing-vessels, and that there was reason to believe that these
vessels had, in < ousequence of the intimation thus given, ceased to arm themselves
for the purpose of resisting the cruizers of the United States.
I have forwarded to yon by thi.s nuiil 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 telegran. addressed to him by me in reply.
I observe tliat the information ol)taine<l by Sir Lionel West from Mr. Bayard,
which is the same as that connnnnicated to me in your telegraphic desjiatch of the
(!th instant, is nu'rely to the eti'ect that no orders have been issued by the United
States for tlie cai>ture of British ships lishiiig in the Behring's Sea. I need scarcely
point u\x{ WxAi,/ t'liis U not ei^uivulcnt tp an usaufuuc^ tUat such vessels will uot bo
82
ORAL AKGUMICNT OP JAMKS C, CAHTKR, ESQ.
iii(il<!Htr<1 except wluMi fdiiiid within tlm 15-inilo limit, ana tiiiit wo uro n(it infonntiil
wlirtlior any (irdui'u wliiuh liuvo bi'on already ImsikhI iu tliia cunneutiuu aro or arc nat
Htill iu I'urcu.
Tluit is ill icfcnMice to iiiiotltiM- to[>i(', the rtMnu'st of Great Hi'ltiiiii
tliat iiistriKttioiis should be issued by the United States Goveiiiiiieiit to
its cruisers in tlie lierin;;' Sea not to iiitert'cro with British vessels.
He passes from that:
I need scarcely ])iunt out that the dose, time for HcalH, referred to in your tolenrani,
JH (^'cattul under a Statute of the United States, wliicli in not oldi^atory except iijhmi
the Hiihjects of that i'ower. The ])roposul contained iu the iuelosnre to your (^'onfi-
dential desiiatch of the Stli March, IHHS, for the adoption of a similar close scuisou hy
Uritish lishermen is at present receiving tlio ('arefnl ciuisideration of my (iovornment.
.Such a close lime could obviniisly not he inijiosed ui>ou our llsluM'men without notice
or without a fuller diHcussion t iian it has yet un(iery;oue. You aro aware that, dnrin>^
the close time eiiforccil hy the I nited States Statute, the seals, althou<rii prote<'ted
from slau;;hter hy the use of tirearms, may he killed in j;r<^at numbers on their breed-
inj^ Ltrounds hy the persons who enjoy the uiouo])oly of the trade under ConcessiouH
froiri the United States (tovei'nment. 'I'he rest of the year these aniuuils aro, accord-
ing to Mr. May aril's statement in his despatch of the 7 th of l''ei)ruary, 1^)S8, "supposed
to spend in the open sea south of Ihi! Aleutian Islands," where tlniy are i>rol>ah]y
widely Hcatter(Ml and dithenlt to llnd. It would ajipear to follow that, if conciirnuit
r<'j;uIations based up(ui the Anwricani Uaw were to lie adopleil by (ireat ISritain ami
tlu^ I'niteil States, the |irivilejj;es enjiiycil by the citi/.ens of the latter Power would
belittle if at all curtaihMl, while ilritish lishermen would llml themselv(;s completely
excliuled IVom the rights which until lat»)ly they have enjoyed without i|nestion or
molestation.
In nialuni; this observation, I do not desiie to intiuiate that my (ioverunieiit would
be averse to enterini^ into a. reas(Ui,'ib!e aijrecment for ju'otectiuff the fur-boariufj
animals of the I'aeilic coast from eNt.'rmiual ion, but merely that a one-sided restric-
tion such as that which appeared to l)e sny;^!' .teil iu your telegram could not he
suddenly and arbitrarily enforeial by my Ciovcrnmeut upon the lishermen of this
country.
i have, etc., IiAN.SD()WNK.
It will iu»w be ])er(eived, let nie re|»eat, that the nejjjotiation entered
into between the, United Stiitesaiid Gretit Britain, with every prospect
aftlrst of:i iavoralde lenninalioii, had been arrested in consetiuenceot
protest liaviiiji' been received from the Ciinadiiin Government. I do
not comidain of that, or su};i;est its impropriety; I am merely statin}?
tile fact that it was arrested at that point and in consequence of that
l)rotest. .
The business continued in a condition of suspense in consequence ot
that for a very considertible time; although, if 1 rightly remember, the
United States on ni<ne than one occasion durino' the interim rather
pressed the British Government to j^ive a deci<led answer; but the next
we hear of it — which is to the point E tun en<fa]^ed upon — is contained in
Ml-. Phelps' letter to Mr. Bayard of September lL>th, 1888. Mr. Phelps
had returned from his absence in the United States and again taken
charge of the Americitn embassy in London, and Lis communication is
as follows to Mr. Bayard:
Mr. I'hclpH to Mr. Ihxyard.
N". 825.] LixiATiox OK the Unitkd Statks,
London, Septcmher l^M, ISSS. (Received September 22.)
Siu: Referring to the subject of the Alaskan s(!al tisheries, and to the previous cor-
resjiondeuce on the subject between the l)ej)artment and this legation, I have now
the honor to ac(iuaint you with the purjiort of a conversation which I held with Lord
Salisbury in regard to it on the Kith August.
Illness, wliicli lias ineapai'itated mo from business during most of the interval, has
prevented my laying it before you earlier.
One of the ohjet^ts of the interview I then sought with his lordship was to urge
the conii>letion of the convention between the United States, Great Britain, and
BusCia, which uuder your iustructious had previously beeu the subject of discussiou
>&
OUAL AKGUMliNT OF JAMES C. CAHTHK, ICSQ.
33
liuicatioii IS
interval, has
bctwoeii till! Hocrctiiry for ibroij;!! uffairM, tlui UiiHHinn aiiibiiHNatlor, nml myHolf. This
(oiivfiition, art I liavo helbro advined you, Imd Ixomi virtually »y;ree(l on v«rl>ally,
fxcupt in ItH (lotailH; and tlio Unssian as well as tlm United States (iovcrnnicnt wtM'o
desiruuH to have it C()ni])ietcd. 'I'liu conHidcrutiun of it had been HnH)i<>iiiled for coin-
niiiuicatinn by the Hritisli (iuvernnicnt willi the Canadian (ioveriinient, for wliidi
])ur]>oHe an interval of several niontim had been allowed to ela]me. I'lirin^thiH time
the attention of Lord 8alirtbiiry liiid been repeatedly retailed to tlie Nubjeit by this
legation, anti on those occasions the answer received from him was that no reply
from the Canadian authorities had arrived.
In the conversation on the l^th, above mentioned, I a;;aiu |>ressed for the comi)lc-
tion of the convention, as the exteruiination of the seals by Camidiau vessels was
nmUMstood to bo rapidly proceediiifj. His lordship in reply did not ([iiestion the
propriety or the imjiortance of taking measures to prevent the wanton destruction
of so valuable an industry, in which as ho remarked, Kni;land had a lar^e interest
of its own, but said that tln^ Canadian (Jovernmeut oltjected to any such restrictions,
ami that until its (;oiisent could l>e obtained. Her Majesty's (iovt^rnment was not will*
ing to enter into the convention; that time would be roiuisite to bring this about,
and that meanwhile the convention must wait.
It is very a])paront to me that the Hritish (ioverniuent will not execute the desired
convention without the concurrence of Canada. And it is etjually apparent that the
concurrence of Catiadn in any such arrangement is not to be reasonably exi)e('ted.
Certain Canadian vessels are nuiking a i)rolit out of the destruction of the seal in
the breeding season in the waters in (|UeHtion. inhuman and wasteful as it is. That
it leads to the s])eedy extermination of the animal is no loss to Canada, because no
part of these seal lisheries belong to that country; and the oidy profit open to it in
connection with them is by destroying the seal in the open sea dnrini; the breeding
time, although many of the aniiuals killed in that way are lost, and those saved are
worth nuich less than when killed at the ])roper 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. lictwetMi
these alternatives it does not a]>penr to me there should "be the slightest hesitation.
Much learning has been ex]>ended upon the discussion of the abstract question of
the right of mnrc claiisuvi. 1 do not conceive it to beapplit^able to the present case.
Here is a valuable fishery, and a large and, if projjcrly managed, permanent indus-
try, the i)roperty of the luttions 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 ojien neighboring sea, during tJie pt-riod
of gestation, when the conunon dictates of humanity ought to protect them, wt^re
there no interest at all involved. And it is suggested that we are prevented from
defending ourselves against such depredations hecause the sea at a certain distance
from the coast is free.
The same line of argument wonld take nnder 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 «langerous obstructions and derelicts in the
opiMi sea near its coasts. There are many things that can not be allowed to he done
on the open sea with imi>nnity, and against which every sea is mare claimum. And
the right of self defense as to person and property ])revail there as fully as else-
wlicre. If the lish upon the Canadian coasts could be destroyed l)y s( attering poi-
son in the open sea adjacent, with some small profit to those engaged in it. would
Canada, upon the just princijjles of international law, be held defenseless in such
a case? Yet that i^rocess would be no more destructive, inhunuin, 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 nnknown. The best interna-
tional law has arisen from precetleiits that have been established when the Just occa-
sion for them arose, undeterred by the discnssion of abstract and inadetjuate 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-
litilde and legitimate fishing by American vessels near its coast. What princijde of
reciprocity precludes ns from putting an end to a pursuit of the seal by Canadian
ships Vhich is unjustifiable and illegitimate?
I earnestly recommend, therefore, tiiat the vessels that have been already seized,
while engaged in this business be firmly held, and that measures be taken to capture
and hold every one hereafter found concerned in it. If further legislation is neces-
sary, it can doubtless be readily obtained.
There need he no fear but that a resolute stand on this subject will at once put an
end to the mischief complained of. It is not to be reasonably expected that Great
B 8, P! XH 3
34
ORAL AROUMKNT OF JAMKS C. CAHTKR, KHQ.
Itritain will i«itli<M' Diicoiini^c or HtiHliiiti lii^r iioIoiiIcn in noniliirt wliich Hhn hcrM*>lf
«'()ii('<!(los to lio wroiii; iiiid wliicli is ili>triin<'iil;ii to Iht own iiitrrrHtrt iih well un to
ourH. Mont tliuii l(i,(H)i) i pio iint iMi;;ii;;fil in London iilonu in tiic preparation of
HiMil HkinH. Anil it is uinliTHtood tliut tliu liritiHJi (iovttrnniont has ri'i|iifHt«d that
cleariiiiuiH MJionld not liu isHUrd in (Janada for v«n8cIh uniployud In tliiH ImtiinoHH; but
tlu) rt)i|M<-Ht liaH ItiMMi dlNrogardud.
1 havi', otc, K. J. I'liKiJ'M.
The leiiriiod Arbitriitors will perceive that Mr. IMielps, iit least, caiiie
to tlie coiicliision nt this iiioiiieiit tliat the t'lirtlier pi-()<^ress ot' the nc^fo-
tiittioii and any siuHse.ssrnl coiicJiisioii ot'it were iiiip*issil)le; and impos-
sible ill c()iis(>(|iieiiee of the ititei-veiitioii of (Jitiia<la; iind that any
assent to rcifiiilations which ini^iit ho pi'oposed, and which would '
ellective for tiie purpose, woiihl never l)e f,'iven by the Canadian (' ,-
ernnient. VVliether he was rijulit or wron;? in tliat opinion upot I'ls
part is not to my i>resent ])iirpose. It will perhaps be the sub; t ,»f
iuturo discussion; but it is safe to concliide from the correspo .«enco
that 1 have read to the Tribunal that the consummation of tip .ieK(»tia-
tion was arrested at this point — arrested by the intervention of Caiuida,
and I <lo not find iinywhere in this correspondence any augjjestion
on the |)art of (.'anacla of another, or ditVerent, or moditled, scheme
desi|itiie<l to accomplish the purpose of preserviiiy' the seals. [ think
there is no evidem;e that Canada had ever submitted any proposition
of that sort.
This brings us to the conclusion of what, I think, may properly
enough be called the first stuf/e of this controversy. It is a stage
which embraces these leading features: the capture by the cruisers
of the United States of liritisli vessels engaged in pelagic sealing;
the obJe(!ti()n and the protest of the l»ritish Uovernment, the ground
of objection being that it was an attempt to enforce a munici])al law of
the United States uj)on the high seas; an avoidance of any discussion
of that question by Mr. IJayard; 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 avoi<l a useless, and i)erhaps an irritating and abortive discussion,
upon the (piestions of right, if the attention of nations could be called
to the great fact that here was a useful race of animals, an imi)ortant
blessing to mankind, threa<t'ned with extermination by certain prac-
tices, and that, therefore, it sl/o' Id be the duty, as it was certaiidy the
interest, of all nations to join pacifically in regulations designed to
prevent the nnschief.
It includes the further tViitare that negotiations were set on foot for
the inirpose of carrying out these pacitic 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 AtVaiis: that an agreement was substantially concluded between
those parties 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 ou of this pelagic sealing;
that, so far as appears, no different scheme, no raodifled suggestion,
designed to carry out the same object was ever formulated by the Gov-
ernment of Cana(bi, 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 tinal, of the negotiation in
conseipience of that objection.
ORAL AKUUMKNT OF JAMES C. CAliTKK, ESQ.
35
she hcrsolf
Wfll IIH t«>
l>!irikti(iii of
ifHtHd that
HincHH; but
I'llKM'S.
iist, ciiiiie
tlU' Il('}{(>-
lul iiiipos-
that iiny
would V
liiui (' .'
iipot lis
3Ub' t ,.f
\w lenco
.iej,'otiii-
t' Ciuiada,
upfffestion
1, Hcliemo
I think
ropositioii
properly
s a stage
) cruisera
seiiling;
e {ground
l)al hiw of
iscusaion
casii waa
Ise of ail
and best
Iscussion,
e called
inportant
[tin prac-
linly the
fgiied to
foot for
Iniericau
fly niau-
for For-
)et\veeii
ke objec-
k which
sealing;
pestion,
le Gov-
|of siiu-
id been
Itioti iu
!«
■f
Those arc tlu^ principal features of what I have thonglit lit to call
thc/i/.v/ Hliiifr in tliis controversy.
Now Id inc jiass to the second.
Senator MoiniAN. Mi'. Cait»'i', do yon niideistand that a Hritish
snbject residing in ('ana<ia has the rigiii, in a diploinati(; senssc. au
international sense, to the protection of two (iovernnients?
Mr. ('Airn.i;. Canadinn and l>ritisli?
Senator MoucAN. ('iinadian and l>iitish.
Mr. ('AiM'i.u. I never tiionght of lliat ; and any opinion T nn'ght give
tijion it wonid be of little valne now. In the cor>'^;c of sin-h rcllecticMis
as I have given to these (piestions, it luis not yet occurred to uie that
that was material.
Senator MoiniAN. The diilienlty, 1 would suggest, that occurs to my
ndnd is this: I can very well understand hovv a IWitish snl>iect is enti-
tled to the protection ot the Mritish Crown ami (loverninent in respect
to his national relations; but I do not understand how the Canadian
(loveinment, as a. (ioveiiimcnt, can interpose to protect liritish sub-
jects within Canada, against an avowed policy of the British Uoverii-
nu'iit.
Mr. Carter. I had not sn])posed that the Canadian (jovernnicnt was
such a (lOveinmcnt as could, in any sovereign cai)acity, or diplonnitic-
ally, cc 1 niuni( ate with other Governments, or assert any rights iu
respect to other (Iovernnients. I had supposed that the cohtniesof the
JJritisJi ICniitiK! occupied substantially some such position as the States
of the American Union occui»y towards the United States Goveniuient,
and tliat the citizens of Canada in reference to any tlefence which they
might desire to imike against the acts of other Governments, would be
obliged to apitcal to tlie impeiial authority; that their own colonial
Government was not able to give them ai y i)rotection. They might
apjieal to their own GovcMimcnt in the tirst instance, but that Govern-
ment, 1 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 JojiN Tiio:\iPSON. Uike most British subjects Canadians have a
right to express their opiidon on matters affecting their own interests;
and the Canadian Governnieiit has the means of expressing that opinion
to the Ihitish (jlovernnient.
Mr. Cartkr. — I should supiiose so; yes. A citizen of Canadu has
the right of every subject of Great Britain to express his oi)inion upon
all subjects of British iiolicy, I supjiose, if any such policy should liap-
jieii to bear heavily upon him; and his own Government furnishes,
doubtless, an instrumentality through which he cau communicate that
expression.
Sir. John Thompson. By which he can claim the protection of the
British Government.
Mr. Carjer. By which he can claim the i)rotection. I should snp-
1)0 se- that.
There were some incidental matters connected with this tirst stage
of the controversy, and which occurred during the discussions iu lela-
tion to it, which make a ligure, but an unimpoitant tigure, iu it. T/or
instance, there were claims for damages made by the British GovciU-
uieut growing out of the seizures, and those claims were persisted in,
and from time to time made tie subject of demand and of diplomatic
communication, in the ucxt place there were further seizures made iu
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. Sayicard.
Sir KiCHARD W4iBsTER. You mean 1887, uot 1888.
36
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
I ''i
111
iil
Mr. Carter. I mean 1887. In 1887 f here were several — five I think —
British vessels seized. All of them were released. Upon what grounds
they were released, whether technical, or for the reason that it was
thought the pending negotiation would be better advanced if causes of
irritation were removed, I will not undertake to say. They were in fact
released.
Sir Charles Eussell. There were seven seizures.
Mr. Carter. Seven seizures. My statement was true that they were
all released but one. I think that one was the W. P. Sayward. She
was carried in, libeled at Sitka, I suppose, and condemned ; and from
the decree coiidenining her an appefil 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 municii)al 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 tvrit 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 disaflirmed the right of
this applicant to raise this question in such a way. It is unnecessary
for nie 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 tiiae 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 weie, of both governments, to take some measure
or otlier 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 IVIarch, 1885) Mr. Harrison succeeded Air. Cleveland in the otfice 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. INIr. Bayard was succeeded in the State Department by
Mr. Blaine, and there was a new ^merican Minister to London. Pres-
ident Harrison, as required by the Statutes of tiie 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. Tlie proclamation having been made
ftud instructions given, there followed, early in the sealing season, the
w*
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
37
) I think —
it grounds
at it was
causes of
ere in fact
they w(»re
ard. She
and from
nie Court
he seizure
<ting that
d to pass,
;o another
I question
le it as a
)eing out-
standing
•isdiction,
;ed States
nt it from
lis writ of
3 right of
necessary
inion was
to be one
tiuiO and
acquaint
u of the
|e contro-
Great
)t at an
failed,
isity and
imeasure
lis from
the 4th
loflBce of
Imerica,
I various
lent by
Pres-
?8, very
^ibiting
jnstruc-
Ivisioiis
[rs had
>ject —
|nd the
made
)n, the
7^.
arrest of British sealers again, and that action was followed by renewed
protests oil the part of the British Government. I call the attention
of the Tribunal to the letter of Mr. Edwardes to Mr. Jilaine. 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 M, 1S89.
Sir: In accordance with instructions which I have received from Her Majesty's
Principal Secretary of State for Forci<>;n Atliiirs, I have the honor to state to you
tl>at repeated rumors have of Lite readied Her Majesty's Government that United
States cruisers have stopped, searched, and even seized British vessels in Hchring
Sea ontside of the three-mile limit from the nearest land. Although no otiicial con-
firmation of these rumors has reached Her Majesty's Government, there appears to
be no reason to douht their authenticity.
I am desired by the Marquis of Sali.sl)ury 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 instrnction 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.
I 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 wou^'l fend to prevent the adjustment which they sought of
the question. aA. ail events, none were made in 1888.
Mr. Cleveland a-id Mr. Bayard, his Secretary of State, under whose
auspices th^t policy of conciliation had been adopted and ])ursued,
were now out of office. They wore succeeded by President Harrison
and Mr. Blaine »>; Secretary of State, of course under the obligation to
enlorce the laws and policy of the United Stales. The negotiation for
a 8'?ttIeii.oUt appeared to be in a state of suspended animation, and
with no particular prospect of being lenev.ed; and, therefore, the
course of +he United States ander these circumstances was to re-adopt
the policy cf enforcing the prohibition of pelf.^ic sealing. That brought
the subjec ; again to the attention of the British Government and led
to protests on its part. Those jirotests 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 inirpose 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 sh dd ';e given to preven; any recurrence of those seizures.
'J'his suggestion could not very well be made in the then existing state
38
ORAL AllGtlMENT OF JAMES C. CARTER, ESQ.
of Imsiiioss, without the expression of some desire or intention of
reo])eiiin<jj the nef^otiations for the adjnstineiit of the matter, and there
fore the letter also contained this: "The Marquis of Salisbury desires
nie to say that Sir Julian J'auncefote, Her Miijesty's Minister, will be
prepared on his return to Wasiiington in the autumn, to discuss the
whole (|uestion, and Her Majesty's Government wish topointoutto the
United States Government that the settlement cannot but be himlered
by any measures of force whicih may be resorted to by the United
States".
The business was new to Mr. Blaine, and the whole subject was
d«aibtless new to him. He answered Mr. Edwardes. His answer is
short:
Mf. Blaine to Mr. Edwardes.
Bak IlARnon, Ani/uai 34, 1880.
Sii! : I have the honor to .acliuowledge the rofcipt of your coniiiiiniication of this'
<hife, ('oiivcviiijr to iiic tlio iiitclli.ueiici! " fliat. rciu^alt'd niniors have of late roaclicd
Her MaJcHly's (ioveninieiit that Unitetl States (Muiser.s liave stopped, S('iir''li' d, :.')<l
even sei/.ed IJritisli vessels in ]{(dirinij Sea outside the 3-inile limit from t'.e \,t •>>■(,''
land." And yon add that, "although no oIKicial contirnintion ofthe.se niiut,;.- 'i.,
reached Her Majesty's (Joveninient, there appears to he no reason to <!,; , ,1 theiv
anthontieity."
In reply 1 have the honor to state that the same rumors, prohahly hased on truth,
havt'. reached the Government of the United States, hut that up to this date there
liiis heen no ollicial conininnication received on the snhjcct.
Jt has heen and is the earne.st desire of the I'residentof the United States to have
such an adjustnient as shall emovo all possible ground of misunderstanding with
Her Majesty's Government concerning the existing tronhles in the Hehring Sea; and
the President helieves that tin; responsihiiitv for delay in the adjustment can not
he ])roperly charged to the (il.nernment of the United States.
I beg you will exjiress to the Marquis of Salisbury the gratification with which
the Government of the United States learns that Sir .Julian I'auncefote, Her Majes-
ty's Minister, will hepro])areil,on liis return to Washington in the autumn, to discuss
the whole question. It gives me ])leasun( to assure yon that the Government of the
Tlnited States will endeavor to be i)re])iircd for the discussion, and that, in the
opinion of the l'r<\sident, the ])oints at issue between the two Governments are
capable of prompt adjustment ou a basis entirely honorable to both.
I have, etc.,
James G. Hlaink.
But Mr. Edwardes pressed for a more categorical answer to his note.
On the 12th of September he writes:
Mr. Edwardes to Mr. Blahie.
Washinotox, September 12, 1889.
Mv Dr.Ai! Mu. Hi.AixK: I should be very much (ddigod if you would hiudly let
me know when 1 miiy ex])ect an answer to tlie rcif.iest of Her Majesty's Government,
wliicii I had tlic honor of communicating to you in my note of the 24th of Augusr,
that instnictiims nuiy l)e sent to Alaska to prevent the ])ossibility of the seizure of
Ih'itish 8hi])s iu Mchriiig Sea. Her Majesty's (iovernuieut are earnestly ji waiting the
rejily of the United States Governnu'ut on this subject, as the recent reports of
seizures having taken place are causnig much excitemeut both iu England and in
Canada.
I renuvin, etc., H. G. Edwakdes.
Mr. Blaine answers that:
Mr, Blaine to Mr. Edwardes.
1
\4
l^^n Hauuor, September 14, 1889.
Silt: I have the honor to a<'knowledge the rcceijit of yo', ,.;'rs(>n!i! iit^'eof the 12th
instant, written at Washington, in wliiciiyoii desire to kii-.w when vmi inay exptnit
an answer to the r('(|uet-, of Her Majcsts's GovernuuMit, '■ tli.it instvi •!» ns may be
j<ent to Alaska to preveut the possibility of the seizure oi L'^itisl- ..iupn in Behriug
Sea."
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
39
iteiition of
and tliere
my desires
tor, will b(?
liscuss the
t out to the
le hiiid<»red
he United
il)ject was
answer is
Hi 2f, 1880.
atioii of lliis
late roiichc'd
!iii"li' '1, :.7i(l
) t'.e 1.1 •)Vij;>'
nuut.i.- '(a
(.lv;ii:>i tlitit-
led on truth,
is (lato tliere
;atos to liiive
an<liiijr witli
m<!; Sea; and
lent can not
•with wliich
Her Majca-
n, to discuss
luent of tlie
;hat;, in tho
nnients are
Br.AINK.
his note.
/', r,9,9,9.
Iiinilly let
)V('rnment,
|of AiifTiisr,
seizure of
aitinjj[the
reports of
ind and in
i^ARDES.
14, 1889.
|f the 12th
liiy expect
lis may bo
li 13elirin>{
1
I had snpi)OR('d that my note of AnjX'ist 24 would satisfy Her Majesty's Govern-
ment of the President's earnest desire to come to a friendly aj;reemenl ton<hinf; all
matters at issue between the two (Jovernnieuts in relation to Hehrins Sea, and I had
further sui)posed that your mention of the oflleial instruction to Sir .Julian I'aunro-
fote to proceed, immediately after his arrival in October, to a full discussion of the
question, removed all TU'cessityof a preliminary correspondence touching its merits.
Referrinj; more particularly to tho question of which you rejx-at the desire of your
Governiueut for an answer, I have tho honor to inform you that a categorical response
would have been and still is impracticable — unjust to this Oovernuient, and mis-
leading to the Government of Her Majesty. It was therefore the judy;ment of tho
President that the whole subject could more wisely be remanded to the formal dis-
cussion so near at hand which Her Majesty's (Jovernment has proposed, and to which
the Government of the United States has cordially assented.
It is proper, however, to ad<l that any instruction sent +') Behring F)ea at the time
of your original recpiest, upon the 24tli of Adgust, would have failed to reach those
waters before the proposed dejiarture of the vessels of the United States.
}. have, etc.,
Jamks G. Blaine.
These letters, it will certainly be aj^reed, 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 ' \ould be
bronght on.
Sir Charles Eussell. The next letter from Lord Salisbury is
inii)ortant,
Mr. Carter. 1 have not marked it as important, but if you think so
Sir Charles, 1 w ill be gla<l to read it.
Sir Charles Kussell. I wish you would, It is on the same page,
107.
Mr. Carter. I will do so. It is from Lord Salisbury to Mr. Edwardes
and a copy was left at the Department of State.
The Marquin of Salisbury to Mr. Edwardes.
[Lofl at the DepartineDt of State by Mr. Edwardes]. •
I'OUKIGN Office, Octoher 2. 1-^89.
Sin: At the time when the seizures of British ships hunting seals iu liehring's
Sea during the years 1886 and 1887 were the subjects of discussion the Minister of
the United States m.-ide certain overtures to Her ^lajesty's Government 'vith respect
to the institution of a close time for the seal fishery, for the purpose of preventing
tlie 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 intornati(mal law. Her Majesty's Government were very
ready to agree that the subject was one deserving of tho gravest attention on the
T>art of all the governments interested in those waters.
The Russian Government was disposed to join in the proposed negotiations, but
th(!y were susjiended for a time in consefiucnceof ol)jections raised bs 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 im]'ortance of this question,
and of the great vahie which Avill 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 disiiatch No. 205, of this date, to the Secretary
of State, and, if he Bhould desire it, you are authorized to give him copies of them.
I am, etc.,
SAUsnuuY.
Yea, it is quite important, and I am obliged to my learned friend for
the suggestion that it be read.
These dennvnds by the British Government, occasioned by the new
seizures, and this sort of dijilomatic corresjtondence having been begun,
during which preliminaries the new Government of the United States
was occupied in considering the])roper attitude to be taken, Mr. Blaine,
linally, on the 22nd of January, 18D0, addressed Sir Juliau Pauncelote
40
ORAL ARGIIMKNT OF JAMES C. CAKTKR, ESQ.
i
i)H(l (Iclivored to liim the result of the consideration and reflection
which President Harrison had given to the subject. This is on the 22iid
of January, l.S!)0.
Sir Charles Hussell. If you will pardon me one moment you have
only read one of those two desitatches 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 CuARLES KussELL. Not at all. Do not go to that trouble.
Mr. Carter. 1 now read the letter of Mr. Blaine, January 22, 1890:
Mi: Blaine to Sir Julian PaunceJ'ole.
Departmknt of State, Washingion, January S3, 1890.
Sir; Several weoks liave clupsod sineo I li.art the lioiiorto receive tbronji;li the bands
of Mr. ErtwiinU'S copies ftf two di*' /ullIics from Lord Salisliiiry eoiiij)Iaiiiing of the
course of the United States rev .iiie-cutter llnnh in intercepting Ciinadiuu vessels
nailing under the 15ritish Hag : id engaged in taking fur seals in the waters of the
Bclniiig Sea.
Subjectp \. bich could not be xx'Stponed liave engaged the attention of this Depart-
ment and ' '.v vc'Hlered it impossible to give a formal answer to Lord Salisbury
until the j). t iie.
In the opini . the President, the Canadian vessels arrested and detained in the
IJebring Sea we, • ii^aged in a pursuit that was in itself contra honoa mores, a pursuit
■which of necessity involves a scrions and permanent injury to the rights of the
Government and ])eoi)le of the United States. To establish this ground it is not
necessary to argue the (piestion of the extent and nature of the sovereignty of this
Government over the waters of the I5eluing Sea; it is not necessary to explain, cer-
tainly not to detine, the powers and ]irivileges ceded by His Imperial Majesty the
Emperor of Russia in the treatv 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 ui)on whi('h 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 irom the Alaskan possessions is tlui fni-seal fisheries of the
iJebring Sea. Those fisheries had been exclusively controlled by the Government of
Russia, without interference— or without r]ue8tion, from their original discovery
until the cession of Alaska to the United States in 18(i7. From 1!S67 to 1886 the
possession in which Russia had been undisturbed was enjoyed by this Government
also. There was no interruption and no intrusicm from any source. Vessels from
other nations passing from time to time through IJehring Sea to the Arctic Ocean in
pursuit of whales bad 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 subseijuently
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 ui)on prolonged observation and investigation, but the fact bad
also been demonstrated in a wide sense by the well-nigh total destruction of all seal
lisheries excejit the one in the liehring 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.
Tlie 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 iir.mediate
loss of three seals, besides the future loss of the whole number which the bearing
seal may ])roduce in the successive years of life. The destruction which results from
killing seals in the o])cn sea procetuis, therefore, by a ratio which constantly and
rapidly increases, and insures the total e.vterniiuation of (be s)>ecie8 within a very
brief period. It has thus become known that the only proper time for the slaughter
of seals is at the sinson when they betake themselves to the land, because the land
is the only place where the necessary discrimination can be made as to the ago and
sex of the seal. It would seem, then, by fair reasoning'', thiit natio;is not possessing,
the territory u])on which seals can increase their numbers by natural growth, and
thus afford an annual 8ui)])ly of skins for the use of mankind, should refrain from
the slaughter in open sea wh(>re the (lestruction of the sj)ecies is sure and swift.
After the accpiisition of Alaska the (Jovernment of the United States, throughi
comi)eteut agents working under the direction of the best experts, gave careiul
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
41
reflection
1 the 22iid
you have
Oue was
lit.
able.
22, 1890:
r n, 1S90.
1i tlie hands
iiing of the
lian vessels
iters of tbe
his Depart-
l Salisbury
lined in the
8, a pursuit
?ht8 of the
id it is not
uty of this
s]>laiu, cer-
lajesty the
usferred to
luisition of
tlierevvith,
whi<:h this
p Majesty's
it valuable
ies of the
inniient of
scj)very
1886 the
ernraent
ssels from
Ocean in
seals.
ad been a
■iequently
beyond
to their
tish and
fact had
f all seal
United
n people
in com-
iniediate
bearing
ilts from
itly and
1 a very
iiiighter
ihe land
ige and
Bsessiug
Ith, and
lin froiii:
lift.
Ill roil gb
Icaruiul
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 Governiiieut succeeded in increasing the total number of seals and adding cor-
respondingly and largely to the value of the fi&heries. In the course of a few years
of intelligent and interesting experiment the number that could be safely slaugh-
tered was tixed at 100,000 auimally. The Conijjany to which the administration of
tlic fisheries was intrusted by a lease from this (jloverniuent has paid a rental of
ijTid.OOO 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 tlie markets of the world, and the business had grown so large that the earnings
of English laborers, since Alaska was transferred to the United States, amount in
tlie aggregate to more than §12,000,000.
Tlie entire business was then conducted peacefully, lawfully, and profitably —
jirolitably to the United States for the rental was yieldiMg a moderate interest on
the large sum which this (joverniiieiit ha<l paid for Alaska, including the rights now
at issue; profitably to the Alaskan Company, which, under governmental direction
ami restriction, had given unwearied pains to the care and development of the fish-
eries; profitably to the Aleuts, who were receiving a fair pecuniary reward for their
labors, and were elevated from semisavagcry to civilization and to the enjoyment of
schools and churches provided for their benefit by the (joverument of the United
States; and, last of all, jirofitably Ut a large body of English laborers who had con-
stant employment and received good wages.
This, in brief, was tlie condition of tlie Alaska fur-seal fisheries down to the year
1880. The prcH'cdents, 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 bonlered, or on the
islands included within, the Behriug waters where the seals resort to breed. Into
this i)eacefiil and secluded field of labor, whose benelits were so equitably shared by
tbe native Aleuts of the Pribilof Islands, by the Unite«l 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 iire so valuable. The (iovernment of the United States at once proceeded to
check this movement, which, unchecked, was sure to do great and irreparable harm.
It was cause of unfeigned surprise to the United States that Her Majesty's
Government should immediately interfere to defend and encourage (surely to encour-
age by defending) the course of the Canadians in disturbing an industry which had
been carefully developed for more than ninety years under the Hags of Russia and
the United States— dtn'doped in such a manner as not to interfere with the 2>ablic
rights or the private industries of any other people or any other person.
Whence did tiie 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 (lefend 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 ilajcsty's Government conclude that an act may be committed
with inii)unity 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 tbe injury to the fisheries from the irregular and destructive
slaughter of seals in tlie 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 G0,lX)0. 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 bo 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 a.'ts of destruction on the high seas, viz, more than ?. marine miles from the
shore line. It is doubtful whether Her Majesty's (Government would abide by this
rule if the attempt were made to interfere with the i>earl fisheries of Ceylon, which
extend mere than 20 miles from the shore line and have been enjoyed i>y 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 8<>11 the pearl-fishiug 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 Great Britain on the plea that the vicious acts were committed more than
3 ii.iles from shore.
Thi're 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, liaving a limited range of water in which to live and uie.
In these great "colonies" it is, according to expert judgment, comparatively easy to
42
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
(•xjilodf! flynaniito (ir siiiiit powilcv in such iiiMniicr as to kill vjist i|ii(iiit.itio8 of fish,
iiinl at the HMiiK! time destroy coimt less iiiimltcrs (if cjffiH. Strinjii'iit laws liavo l»i'»Mi
necessary to |iiov(!iit tlio takiiiv; of fish liy the nso of dyiiainiti^ in many of the rivers
and lakes of tlio United States. The same mode of tishin;; could readily he adopted
■with effect on the more shallow jiarts of the, hanks, ))iit the, d<;struction of fish in
]iro]iortion to the catch, says a hi<;li authority, mi;;ht he as jfreat as ten thousand to
one. Would Her Majesty's Government think that so wicked an act could not ho
]>r(!vented and its perpetrators punished 8imi)ly heciauso it liad been comiuittert out-
side of the H mile line?
Why are not the two cases parallel? The Canad'"> vessels are "iK'ngcd in the
taking of fur seal in a manner that destroys the pow> > . i>j, '..iction and insures
the extermination of the; sjieeie-s. lu exterminating the species an article useful to
mankiiul is totally destroyed in order that temporary and innnoral gain may he
ae<]nired hy a few ])ersinis. By the employment of dynamite on the hanks it is not
]iroliahl(^ that the total destruction of (ish could he accomplished, hut a serious
diminution of a valua1)le food for man mij^tht assuredly result. Does Her Majesty's
Government seriously maintain that tlie law of nations is powerless to ]»r(!vent such
violatitm of the coirimon ri/^hts of man? Are the supporters of Justice in all nations
to ho declared incompelent to prevent wrongs so odious and so destructive?
In the Judgment of this (iovernuient the law of the sea is not lawlessness. Nor
can the law of the sea and the liberty which it coiilVu's iiiid which it protects he \)ViT-
verted to Justify acts which are imnuu'al in themselves, which inevitably tend to
results ajrainst the interests ami against the welfare of mankind. One step heyond
that which Her Majesty's Government has taken in this contention, atid piracy finds
its Justification. The President does not conceive it ]iossihle that Her Majesty's
Government could in fai't he less indifferent to these c ii results tli: n is the Govern-
ment of the United States. But he hopes that Her > ty's Gove; mient will, after
this frank expn'ssion of views, nu)re readily eom[)relM ud the position of the Govern-
ment of the United States touching this serious iiuestiou. This Government has
heen ready to concede much in order to adjust all differences of view, and has, in the
judgment of the President, already ]>roposed a solution not only equitahle hut gen-
erous, 'i'hus far Her Majesty's Government has detilined to accept the proposal of
the U'nited States. Tlie Pnisident now aAvaits with deep interest, not unmixed with
solicitude, any propo.sition for reasonable adjustment which Her Majesty's Govern-
ment may suhmit. Tae 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 defeudiu;; the traditional and h)ng-established rights of the United
States, hut also the rights of good government and of good morals the world over.
In this contention thi! (iovernmeut of the United States has no occasion and no
desire to witliu.aw or m.,.lify 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 auy nation the privileges which it demanded for itself when
Alaska was part of the Russian Em])ire. 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., .Tame.s G. Bi.aine.
Tiro President. If you pleasft, Mr. Carter, you may continue your
arf^iinient to-morrow.
Tribunal adjourned until Thursday, April IStli at 11.30 a. m.
EIGHTH DAY, APRIL 13^", 1893.
I
The Tril)uiial met ])nrsuaut to adjournment.
The I'liESiDKNT. iMr. Carter, wlien you are ready to continue your
argument, we will hear you Avith pleasure.
Mr. Carter. IMr. President, when the Tribunal adjourned yesterday
I was eninaged in explaining the Ic.ding features of what I called the
second stage of the controversy; which commenced with the beginning
of the administration of President Harrison. I had in substance
brought out, or endeavored to bring out, these features: that tor a
considerable period of time i^rior to the accession of President Harri-
ORAL AUGtlMENT OF JAMES C. CARTER, ESQ.
43
titios of fish,
ws have, Itecii
of tilt' riviTH
y lit! iidopffd
on of IihIi in
I thonsimd to
roiilil not 1)0
innjittod out-
'"•pcd in the
II and insureH
icio UHufiil to
gnin niny bt*
inka it iH not
.)ut ii serions
ler Majesty's
])r(5vcnfc such
in all nations
tive?
I'ssiioss. Nor
•tccts he ])or-
tahly tend to
stop beyond
1 piracy finds
ler Majesty's
3 the Govern-
tfntwill.ftfter
f the Oovern-
^-ernnient has
ikI has, in the
,ble but Ken-
e proposal of
mmixed with
sty's Govern-
s constraiu(!d
only by the
f the United
J ^vorld over,
ision and no
maintained
States will
itself when
Jnited States
than it was
soyereignty
ins will con-
and in the
le Empire of
I. Br.AINE.
tinue your
m.
inue your
yesterday
called the
pefjitiTiing
substance
lliat for a
Int Ilarri-
■■=1
m
%
son the netrotiatioiis Avliicli had been entered into between the two
(ioveniinents had been interrnpted in eonsequenc-e of the objection of
Canada, and they were in a state of .suspended animation, so to speak,
with ii(» immediate y)rosj)e('t of tlieir being renewed; tliat under tliese
eireumstanees Tresident Harrison felt it liis duty to issue tlie procla-
mation recpiired of him by law, forbidding all iielagi<; sealing in the
waters of Alaska; that that i)roelamation was followed by a<iditional
seizures, and those seizuies brought renewed protests from the liritish
(lovernment, and thus the controversy was renewed; that the demands
of the IJritish (iovernment consequent upon the seizures were rei)eated
from time to time, and some i)ressure was exerted upon the United
►States for the purpose of inducing the (iovernment to issue instruc-
tions to ]»revent the further interference with JJritish vessels engaged
in ])elagic sealing; that while this was going on, the (iovernment of
I'resident Harrison took the whole subject into consideration, and
finally the views of the Government were expresses, in a note by Mr.
Jilaine to 8ir Julian Pauncjefote, with the reading of which the session
of yesterday was concluded.
The Tribunal will have observed that Mr. Pilaine in this quite long
note stated rather fully the substantial ground upon\vhich the (iovern-
ment of the Iinited States placed itself. Those grounds had not been
theretofore stated. They had been hinted at and intimated by Mr.
Secretary liayai'd in his instructions to the American Ministers at for-
eign (Jovernments designed to call the attention of those (iovernn)ents
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 ojunion might be entertained, lie avoided, in other
Avords, all dis(!ussion of the grounds of riffht upon which tlie United
States i»laced 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 tirst time by Mr. Blaine in the note whieh I
rea<l just at the close of yesterday's session. In substance those
grounds were that the United States was carrying on an industri/ in
connection with these seals, carijig for them, cherishing them, taking
the natnial increase from the herd and ])i('seiving the stock on the
I'ribilof Islands; that tliis was an industry advantageous not only to its
lessees but, wiiat was of much more importance, advantageous to man-
kind; that the pursuit of pelagic sealing threatened that industry with
destruction, destruction not oidy to the interests of the United States
and its citizois, 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 (U\stru('tive and illegitimate charac^ter, it had
this injurious effect upcm a special industry and right of the United
States. Those were the grounds upon which the ciise 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 comnuinication to Mr. Blaine, which is found on i)age 204 of
the American Appendix:
Sir Julian Pauncefote 1o Mr. Blaine.
WAsiiiNiiTON, Fchriiarii 10, lf<90.
Sir: ITer Majesty's Government have had for sometime under their consideration
the suKK'f^tion made in the course of our interviews on the <|uestion of the seal fish-
eries in Hehriiifj's Sea, that it miH;ht expediti! a settlement of the controversy if the
tripartite negotiation respecting the establishment of a close time for those lisheriea
k
44
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Tvliioli wore cornineuced in T^ondnn in 1888, but was auBpended owing to various
cuusen, should be reHuuicd in WnsbiuKton.
I DOW have the honor to inform ynu that Her Majesty's Government are willing to
adopt this sii^gfstion, and if agreeable to your Governiueut will take steps concur-
rently with tneui to invite the participation of Russia in the renewed negotiations.
I have, etc.,
J'JLIAN PAUNCEFOTE.
Here we find a suggestion from tbe Government of Great Britain that
the original negotiations, whicli 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 ai)pear8 that some per-
sonal communications had taken i)lace in Washington between Mr.
Blaine and Sir Julian respecting the resumption of the negotiations,
and the probability, or possibility, that they might be brought to a
successful issue. Mr. Blaine had suggested in the course of those com-
munications that he thought it quite improbable that the assent of
Canada would ever be obtained to any regulations, or to any settle-
ment, which would have the eflFect of protecting the seals from extermi-
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
readied 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 Eussell. The date is the 29th, I think.
Mr. CARTER. The 29th.
Sir Julian Pauncefote to Mr, Blaine.
Washington, April — , 1890. (Received April 30.)
Dkar Mr. Blaine : At the last sitting of the Conference on tlie Kehring Sea Fish-
eries (luestion, 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 Can.ada.
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 v-Iiich has manifested itself in tho
course of our discussions, 1 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.
I call the attentiOii 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 difKculties 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 dispoae
of all the points in dispute.
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
45
JNCEFOTE.
As regards the irninediate necoHsitiea of the case I am prepared to rerommend to
my Ooveniiiient for tlieir approval and acceptance certain mcaHiires of jirecantiou
which might be adopted provisionally and without prejudice to the ultimate deci-
sion on the points to bo investigato<l by the commission. Those measures, which I
will explain later on, wonld effectually remove all reasonable ai>i)rt'heusion of any
depletion of the fur-seal species, at all events, pending the report of the ccmiiuissiou.
It is important, in this relation, to note that while it has been contended on tlio
part of the United States Government 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 alarms.
Mr. Tingle, in 1887, reported that the vast number of seals was on the increase,
and that tiie condition ot all the rookeries could not be better.
In his later report, dated July 31, 1888, he wrote as follows:
" I am happy to be able to report that, although late landing, the breeding rook-
eries are tilled out to the lines of measurement heretofore made, and some of them
nmch beyond those lines, showing conclusiNaly that seal life is not being depleted,
but is fully up to the estimate given in my report of 1887."
Mr. Elliott, who is frequently appealed to as a great authority on the subject,
affirms that, such is the natural increase of the fur seal species that these animals,
were they not preyed upon by killer whales {Orca Gladiator), sharks and other sub-
marine foes wonld multiply to such an extent that "Behriug Sea itself could not
contain them."
The Honorable Mr. Tnpper 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
ha* apparently been greatly exaggerated as may be seen from the aflidavits 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," pro-
pared and published in San Francisco and designed for the information of Eastern
United States Senators and Congressmen.
The Canadian Government estimate the percentage of seals so wounded or killed
and not recovered at 6 per cent.
In view of the facts above stated, it is improbable that pending the result of the
inquiry, which I have suggested, any appreciable diminution of tlie 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 wonld propose the following
provisional regulations.
1. That pelagic sealing should be prohibited in the Uehring 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 titmedthe "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 slaughter of female seals with young during tho
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 logs which alluos^ continuously prevail in that
locality during the summer.
Mr. Taylor, another agent of the United States Government asserts that the female
seals (called cows) go out from the breeding islands every day for food. The follow-
ing is an extract from his evidence:
"These cows go 10 and 15 miles, and even farther. I do not know the average of
it — and they are going and coming all the morning and evening. The sea is black
with them round about the islands. If there is a little fog and they get out half a
mile from shore we can not see a vessel 100 yards even. Thovessels 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."
Whetlier the female seals go any distance from the islands in quest of food and if
so, to what distance, are c|uestions in dispute, but pending their solution the regula-
tion which I propose against the approach of sealing vessels within 10 miles of the
islands for the prevention of surreptitious landing practically meets Mr. Taylor's
complaint, be it well founded or not, to the fullest extent; for, owing to the 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 acceptedby Her Majesty's Government would certainly manifest
p. friendly desire on their part to cooperate with your Government and that of
h 'ii
46
|l !'
It
I
ll
ORAL AHGUMKNT OF JAMES C. CARTER, K8Q.
RiiHHiii ill tho protcrlioii of tlioir rookcrios iiinl in tlii^ prttvoiitioii of iiuy violation of
tbo liiWM a]i|ili<'iililo tlKToto. I liavo tiii^ lionor to iiidoso n dvni't of a preliniiiiary
couv*'ii(iori wliii'li I liiivo propurt'il, |ii-ovi<liii}r for tin- it|)|ioiiitiiieiit of a mixed coiii-
iiiisNioii wlio ai'o to report on cortaiii spccifiod <|iirstion.s witliiii two yrars.
Tiio tlraft enilto(li»!.i tlie temporary n'j;ulatioiis a'oovo dcscrihed toj^ethur, with
otlior clauses which a])poar to mo necessary to j;ivc proper etl'ect to them.
Altlioiiuh I b<!lievu tliat it would he Hiil'tlcient dMriii<; the "nii<{riition periods" to
y»re\ont all sealinj; within a specified distance troni the passes of the Aleutian Islands
I have out of a deference to your views ami to tlio wishes ut' the Russian Minister,
ado]ited the fishery line descrihiMl in Article V, and which was sii;;;;estcd by yon at
the outset of uiir iie<rotiatioii. The draft, of course, contemplates the conclusion of
a further convention aft(>r full exaininatioii of the report of the mixed <'oniinission.
It also makes provision for the ultimate scttlcnuMit by arl)itration of any dilferent^es
which tlie re|>ort of tho commission may still fail to adjust, whcrehy the im])ortant
element of iinality is secured, and in order to K've to t\u'. projtosed arraiiKcnient tho
widest international basis, the draft provides that the other iiowers shall be invited
to accede to it.
'i'lie above projiosals are, of course, submitted ad referendum, and it only now
remains for me to commend them to your favorable consideration and to that of tho
Russian .Minister. They have been Iramed by me in ii spirit of Justice and concilia-
tion, and with the most earnist di^sire to terminate the controveisy in a manner
honorable to all parties and worthy of the three great nations concerned.
1 have, etc.,
Julian Pauncefote,
(For inclosures see Ilonse Ex. Doc. No. 450, i)p. 54-60.)
Tliiit letter, the leaitied Arbitrators will poreeive, l)riiip,\s forward a
somewhat new aspect of the matter. It is desi<;iied to lead to a renewal
of tlie negotiations. It proceeds upon the expressed behef that the
great object of all parties shouUl l)e the preservalioti of the .seals for
tiie benelit of fiiankind, and that atiy particular interest should not bo
allowed to stand in the way of the accompHshment of tliat prime end.
He then suggests that peiuling the negotititions sotiie provisional
arrangements sliould be entered into for the purpose of protecting, in
the meanwhile, the seals from the destructive pursuit. lie suggests —
and it was the tirst time that any such suggestion was made to the
American Governmetit by the British Government, — that there were
great ditt'erences of opinion as to tlie facts, aiul consequently great dif-
ferences of opiidofi as to the extetit of the protection which was neces-
sary. These ditt'erences of opinion as to the facts — which, I say, were
thus intimated for the first time — were based in part n\ '> evideiu:e
which had been submitted by Sir Julian Fauncelbte to .-l. 31aine in
the shape of quite a series of documents on the !)th of March preced-
ing. I read now a letter from Sir rluliati I'auiicefote to Mr. Blaine
which is contititied in Executive Documetit, lIoii.se of Kepresentatives,
51st Cofig,, First Session, No. 400. The letter is foutid on page L'O of
that document, and is as follows:
Sir Julian I'auiicefote to Mr, L'hiine.
[Extriict.]
BiUTisM LiXiATioN, WanhiiKjton, I). C, March 9, 1S90.
Dear Mr. Blaine: I have the i)loasure to send yon herewith the meinoraiidnm
prepared by Mr. Tnpper on tlui seal fishery (|UC8ti(iu, to which he has appended a note
by Mr. Dawson, an eminent Canadian olUciul.
Believe me, etc., Julian Pauncefote.
That letter is very likely somewhere in the correspondence coutained
ill the IJritish A])peiidices, but I do not happen to find it.
Mr. Foster. The memorandum accompanying the letter is found iu
the British Ajjpendix, No. 3, p. A'M.
Mr. Carter. The nu'morandum is found iu the British Case at the
place stated by Gen. Foster, and the documents themselves thus fur-
nished are all contained in the tiiiid volume of the Appendix to the
British Case, p. 436; and it is necessary also to say, U. S, No. 2, 1890.
ORAL AUGlJ>rK\r or JAMRS C. CARTER, ESQ.
47
'iiiliition of
ruliininary
lixud cum-
ther, with
)oiio<lH" to
iaii ImIiukIs
1 Miuintor,
by you at
iclusioii of
)innii.ssi(>n.
(lili'orcnces
iin])oi'tuut
(t'liiciit tlie
be invited
i only now
;hat of the
d conciliu-
1 a niauuur
rCEKOTK,
iu'waril a
I renewal
that the
seals for
Id not be
rime end.
ovisional
icting, ill
l{,'f?('.stS—
le to the
eve were
jreat dif-
is neces-
ay, were
vidence
hiiiie in
preced-
. Bhiine
itatives,
ge L'G of
1.9, 1S90.
loranduuj
led a note
Ikfote.
lutained
)iind ill
at the
Uis t'ur-
to the
li, 1890.
Those docnincnts are too lony; for me to read and it is not important
that I shouhl i«'ad thcin, but 1 can brielly statf their jjeiicral nature.
They contain a j;i»'at (U'al ol" evidence desij;iied to w.xUv it appear tliat
tiie destructive nature of iH'hi;;ic sealiu}; is not as j^reat as it liad some
times been rei)resentc<l to be, and also some nuitler designed to show
tliat the destiucLion of seals is owing to tiie practices i)ursued on the
l*ribih)f Ishinds by tlie I'nited States Clovernment in rehition to the
herd. All that nuitter which, I presume, proceeded from ollieials of I'he
Canadian (lovermnent, is calculated to show that no extreme measures
of i)roteetion were necessary.
This communication of documents to the American Government by
Sir .luliau Pauncetbte on March I), 1S!)() was, I think I am safe in say-
ing, the first intimation ever received by the (lovernment of the United
States tlnit the original measure of prevention suggeste<l by Mr. Phelps
to the Mar(piis of Salisbury and accepted provisionally by him, was ttio
extreme a measure. JMore than two years liad elapsed since that propo-
sition had been submitted and thus provisionally accei)ted by the Mar-
quis of Salisbury, and during all of tliat time, although it was known
that tlie adoption of the measure had been arrested in consequence of
the objection of Canada, no ditTerent measure had been sugges*^<'d as
coming from Canada, and no criticism on the part of Canada uixm the
character of tliat proposed restriction had been offered. On the Dtli of
March, however, evidence showing difl'erences of opinion in respect to
the efleet of ])elagic sealing was placed before the United State:" (i()v-
ernment. Presumably it came from Canada. It is to the differences
of opinion expressed in these documents that Sir Julian refers when ho
says :
Tlio f^reat divergence of views whicli exist as to wliotlior any restrictions of polaj^io
sealiiiij; are nt'censary for tlio i)irisorvation of the fur-seal siiouies, and, if so, as to
the character and extent of such restrictions, renders it iuiiiossible in my opinion
to arrive at a solution wliich wouhl satisfy ])ublii', opinion cither in Canada or lircat
liritain, or in any country whidi minht l)e iiivite<l to accede to the proposed arran.ne-
ment, witiiout a full impiiry by a mixed commission of (iXjierls, the result, of whose
labors and whose investigations in the region of the seal fishery would probal)ly dis-
pose of all the points in dispute.
The point, therefore, of Sir .luliau is this: "We have now arrived at
a difVerenee of view in referenci! to matters of fact connected with seal
life and with pelagic sealing. Those differences of view wliicii now
exist between us are irreconcilable upon any evidence which is before
us. Our object is however, a common one, the preservati(ui of the seal
species for tlie benefit of mankind. What is needed in order to enable us
to come to scmie arrangement which will ace(mii)lish t!i:u prime object is
that we should be thoroughly informed of the fact.^, ;nul in a manner
whicli will leave no room for doubt. When we ascertain the truth upon
those points, then, presumably, at least, we shall find no dilliculiy in
coming to an agreement. We must recognize the truth as it shall tinally
be discovered. Whatever measures of jirotection the truth thus ascer-
tained shall point out as necessary are tlie 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 wiixad vommmion of exjurts; and,
iu saying that they were to be experts, of course it was understood
that they should be gentlemen perfectly competent to deal with all the
(luestions which arose in connection with that subject, and with the
question of natural history as well; in other words, that they should
be men of science, should act under the obligations which attach to men
of science, should have no object iu view except the ascertainment of
11 '^
m
ORAL AHGIIMKNT OF .FAMKH C. CARTER, K8Q.
tlio trntli itself; aixl tliat wlion tlui report was rocoived from siu'li j;on-
tleiiKMi, its coiiclnsioiis should be absoiiitt'ly relied upon by the two
(jovevmnents as the basis of tlieir action. This is his suggestion.
He further says in this note:
I liiivo tlio lioiior to I'liclosp tilt) draft of ii proliiiiiiiary convention whiclj T linvo
proiuiriMl, providing for tint iip|ioiiitnient of a, niixod coninussion, who are to report
on certain spccitic (nicstions within two yearw.
This matter has been alluded to already in the long debate heretofore
had before you ui»on the motion to reject the supplementary report «)f
the Commissioners of Great Britain. It is important, however, that I
shouhl briefly allude to it now. The draft convention which he pro-
])ose(l is (contained in the same i)art of Volume Three, Appendix to the
British Case, i)ago 457:
TiiK NouTH Amkuican Skai, Fisueuv Convention.
TITLK.
Connniion between (Ireal IhUain, Uuns f',aiidthe United Staten of America, in relation to
the fur-seal fiahtrij in the Jiehriug Hea, the Sea of Ovhottik, and the adjoining waters,
PUKAMHf.E.
The Governments of Knssia and of tlio United StntcH having roproseiited to the Gov-
ernment of Great Britain the iirKcncy of rcgnhitinn, by means of an international
agreement, the fnr-seal fishery in ISehring Sci', tlie Seaof Ochotsk, and the adjoining
waters, for the preservation of the fnr-seal hpecies in the North Pacific Ocean; nntl
ditl'ereuces of opinion having arisen as to the necessity for the pro ed agreement,
in conseiinence wliereof the three Governments have resolved ' stitnte a full
inqniry into the snb.ject, and pending the result of such inquiry, 1 >t temporary
measures for the restriction of the killing of seals during tlio bre , leason, with-
out ])reiMdice to the ultimate decision of the questions in ditl'erence in relation to the
said fishery.
The saiil three Governments have appointed as their respective plenipotentiaries.
Who, after liaving exchiingcd tlieir full ]io\vers which were found to bo in good
and duo form, have agreed upon the following articles:
Article I.
MIXED COMMISSION OK EXPEKTS TO BE APPOINTED.
The High Contracting Parties agree to appoint a mixed commission of experts who
shall inquire iully into the suhject and re])ort to the High Contracting Parties
within two yenrs from the date of this convention, the result of their investigations,
together with their opinions aiu) recommendations on the following questions:
1) Whether regulations proper.'y enforced ujion the breeding islands (Hobiu Island
in the Sea of Ochotsk and the Coniniander Isliiiids and the Pribilov Islands in the
Behring Sea) and in the territor.al waters surrounding those ishiiids are suflicient
for the preservation of the fur-sea! 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, wh it should such regulations provide?
4) If a close season is required on tlie breeding islands and territorial waters, what
months should it euibrace'f
5) If a close season is iiecessary outiiido of the breeding islands as well, what extent
of waters and what period or i)eriods should it enxbraue J
Ahtici.e II.
ON HECEIPT of HEPORT of commission QrESTION 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 P.arties will proceed
forthwith to determine what international regulations, if any, are necessary for tlie
purpose aforesaid, and any regulations so agreed upon sliall be embodied in a further
Convention to which the accessiou of tlie other power shall be iiivited.
I) SUcll {••(Ml
by the two
Li.stioii.
which T have
aro to r«it()rt
e heretofore
ry report of
ever, that I
ii(!h he pro-
2iidix to tlie
%, in relation to
ning waters.
ted to the Gov-
i international
I the adjoining
ftc Oceiiu; antl
•ed ngreeuient,
stitnto a fall
't temporary
..enson, with-
relatiun to the
nipotontiarieH.
to bo iu };uod
experts who
(•tin}; I'articB
ivt'stigi'tionH,
lestions:
Kobin iHhuul
shinds in the
aro unflifient
ons should be
o?
waters, what
I, what extent
RKGriATIONS
fs which may
will proceed
isaary ibr tlie
" in a further
ORAL ARGUMENT OF .JAMES C. CARTEB, ESQ.
AHTicr.K III.
AUHITIIATION.
49
In cnse the Hijih Contracting Parties nlioiil(l bo unable to npreo npon the rcRula-
lioiis to be ,i(liiptc(l, Mie (|ii('sf ions in (iiU'crencf sIimM be referred to the arliitration
of 111! iiiiii.irtial govcriinii-nt, who sliall duly considir tlie rcporlH heroiiiiicforc iiicn-
.: I I ...I .1 ..I... 11 Iwv r,....l r..!.l cl...JI il..l...'i.iil... 111.. ....... li»i..>>M ..«' ll...
t ioMcil, and \vIi'in(
fiirtlicr ('onvi'iili<
iward Hhall bo llnal, and shall dulerniino the cuuditioUM of Ihu
AllTICLK IV.
PROVISION AI. KK(ii;i.ATION8.
Pending the report of the Connuission and for six mnnthft after the date of Hnch
report, the lligli (Contracting Parties agiee to adopt and ])nt in force as a temporary
nieasnru and without ]ire]ndic(< to ttie nltiniatit ilei'ision ol' any of the f|neMtioiis iu
tlilferi'ni'e in relation to tlie said lisiicry, the regn bit ions contained in the next follow-
ing articles Nos. 5 to 10 incliisivo.
Akticlk v.
8kal fi8i1kuy mne.
A line of demarcation to be called the "seal fishery lino" shall be drawn na
follows:
From Point Anival at the southern extremity of the Island of Saghalirn in the Sea
of Ocliotsk to tlie i>oiiit of intersection of the SOtli parallel of north latitude with
the KiOlh nieiidlan of longitude east from (hoenwieli, tliciieo eastward along the
said TiOth paralhd to its point of intersect i'l with the lUOtii meridian of longitude
west froui Greenwich.
Abtici-h VI.
CL08K TIME.
The subjects and citizens of the High Contracting Parties shall bo prohibited from
engaging in the fur-seal tishery and the taking of seals by land or sea north of the
seal tishery line from the 1st of May to the 30th of .June, and also from tho Ist of
October to the 30th of December.
AUTICI.E VII.
PREVENTION OK iMAPAlJOKRS.
During the intervening period in order more elfectively to prevent the surreptitious
landing of marauders on the said breeding islands, vessels engaged in the fur-seal
tishery and iiKloiiging to the subjects and citizens of the High (.'ontracting P.arties,
shall liti prohibited from approaching tho 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 reeoniinendation or otherwise, make Biich further teiiiiiorary regulations iis may
b(! <leenied 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 engaj,?d in the fur-seal fishery contrary to the
prohibitifins provided for in artieh^s 6 and 7, or in violation of any regnl.ition made
under article 8, shall, together with her .apparel, equipment, and contents, l)e 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 oil'encQ and
ji s, px xn 1
50
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
impose tho peiL^ltios for the stime. The witnesses and proofs noccHsaiy to establish
tlie olTcuce k1i;i1- also ho sent witli them and tlie court adjiidicatiiiij; upon tiie (!a»o
niJiy onler sucili jiortion of the lines imposed or of the jiroeet-ds of the coudemued
vessel to be applied iu payment of tlie expofses occasioned thereby.
AUTICLE XI.
UATXKICATION. COMMKNCKMKNT AND DURATION OF CONVKNTION.
This convention s'mU bo ratiiieil and tlie ratifications shall be exchan{;ed at
in six mouths fro;a the date tiicreof or sooner if possible. It sliall titko ett'ect on
such day lis shall lie agreed upon by tho Hi^h (Jontractiuj; Parties, and shall lenuiiu
in force until the expiration of six :iu)ntl\s after tlu? date of tlie report of the (.'om-
mission of experts to bo appointed under Article I ; but its duration may bo exteuded
by consent.
AliTICLK XII.
ACCESSION OF OTIIEll POWERS.
The llif;h Contracting Parties agree to invito the accession of the other jiowers to
tho present convention.
To put it briefly, Sir Juliiin's sclioiiie was to obtain this report of a
mixed coiinnissiou of exj)erts, whicb, in hi.s 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 rhey siiould not be able to come to an aj^reemeiit upon receiving that
report, then the points of difference should be referred to the arbitra-
tion of an impartial Government. The schenje had, therefore, two
aspects. First, to settle the diOerences by treaty; failing that, by a
refe "ence to arbitration. That is what Sir Julian Pauucefote expresses
in one part of his letter:
The draft, of course, contemplates the conclusion of a further Convention, after
full cxauiiiuitiou of the Report of the Mixed Commission. It also makes provision
for the ultimate settlement by arbitration of any ditference which tho Report of tho
Commission may still fail to adjust, whereby the important element of finality is
scoured; and iu onler to give to tL ; ])roj)()scd arrjtngemeut the widest international
basis, the draft provided that the other Powers shall bo invited to accede to it.
There is one feature of tho pro[)()gal of Sir Julian to which I nhoidd
call iittention ; and that is the measure of interim protection. I read
again from his letter:
1. That pelagic sealing should be i>rohibited in the Hehring Sea, tlie Sea of Okhotsli:,
and the adjoining waters, during i..e months of ilay and .June, and during the
moubhs of October, .\(iveiiil)er, and Deci iioer, which may be termed the "migration
I)eiio(ls'' of the fur seal.
That all sealing vessels should be prohibited from approaching tho breeding
islands within
idins of 10 miles.
It suggested ;i 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
})roposed by him. Lord Salisbury had under consideration the note of
Mr. Jilaiiie t(; Sir .lulinn which 1 read at the close of yesterday's session
and which nnnle a full statement of the jmsitiou of the United States.
On thei'ilnd of May.lSilO, Loid Salisbury sends to Sir Julian his answer,
a co])y of which was left with Mr. Blaine. That will be found ou page
U07 of the iiist volume of the Appendix of the American Case.
The Marquis of Salinbury to Sir Julian Pauncefote.
[Left at tho Doitnrtraent of State on Juno 5 hy Sir JuUiin Pauncefote,]
No. 106.] FoRKiON Offick, May S^d. 1890.
Siu: I received in due course your dispatch No. !>, of the L'3d .January, inclosing
copy of Mr. niMi lie's note of the 'JLM of that month, in answer to the ))rotest made on
behalf of Ibr Miijc-sty's (ioverumeiit on the il.'th October last, .against the seizure of
t'uuadjau vessela by the Ignited States reveuutJ-cuttcr liuah iu Uohriiig Sea.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
61
y to establish
upon till) rami
le coudeuiued
noN.
angcd at
tiiko ett'ect on
I shall reiiiaiu
t of tho Com-
y bo extended
ther jiowers to
report of a
presumably,
v;1
iiial coiiven-
.;-;"-,
object: that
^
ceiving tbat
|;
the arbitra-
erefore, two
g that, by a
te e:s^presse8
nvention, after
1
akes provision
m
Report of the
of finality is
iiternational
cede to it.
ich I Tihoiild
lion. I read
of Okhotsk,
during the
c "migration
the breeding
suggestions
m the basis
the uote of
ay's session
ted States,
his answer,
nd on page
se.
1;/ SPd. 1S90.
py, inclosing
Itest nuulo on
llie seizure of
iSea.
The iinpovtaiicf of the subject nec::.-sitatcd a reference to the (Jovernnient of Can-
ada, whose reply has only recently reat-'ieu Her Majesty's Government. The nego-
tiations whicl', have taken place between Mr. I51aiiie yid yourself atl'ord strong reason
to hope that the ditliiiilties attending this qnestion are in a fair way towiirds an
adjustment which will he satisfactory to both Gov<!riiiiicnts. I think it right, how-
ever, to jdace on rcior<l, as hrietly as imssildc, the views of Her Majesty's (ioveru-
nient on the princijial argnuicnts lu-oujrlit forward on lidialf of the United States.
Mr. Hlaine's note defends the acts comi)laiiied of by Her Majesty's Government on
the following grounds:
1) 'I'hat "the t'Miiadian vessids arrested and iletained in the Jk-hring Sea wore
engaged in a j)ur8uit that is in itsi-lf c(;y//ra hiinun morcn — a pursuit which of necessity
involves iv serious anil ])crinanont injury to the rights of the Government and people
of the United St;ites".
2) That the (isheries had been in the undisturbed i)0S8e8siou and under the
exclusive control of K'ussia I'toui their discovery until the cession of Alaska to tho
United States in ISdT, and that from this date onwards until 1X.S6 they had also
remained in the undisturbed jiossessiiui of the United Stiites Government.
3) That it is a fact now held beyond de'ual or doubt that the taking of seals in tho
open sea rapidly leads to the extinction of the sjtecies, and that thtu'efore nations
not ))osst!ssing the territory up(Mi which scils can increase their numbers by natural
growth should refrain from the slaughter of them in the open sea.
Mr. Blaine further argues tliat the law of the sea and the liberty which it confori;
do not justify nctn which aie immoral in ihemselvi^s, and which inevitably tend to
results against the interests and against the welfare of mankind ; and ho 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.
lie declares that while the United States will not withhold from any nation the
pri\ ileges which they demandc<l for themselves, wlieii Alaska was part of the K'us-
sian ]''rai)ire, they are not disposed to exercise in the ])ossessioiis aeciuired from Russia
any less powiT or authority tiian they were willing to concede to the Iniin'rial (Jov-
ernmentof K'us.sia when it> sovereignty extended overtheni. He clainisfrom friendly
n:itions a recognition of the same rights and privileges on the lauds and in the watera
of Alaska which thesame friendly nations always couce<led to the Empire of Russia.
A\'ith regard lo the tirst of these arguments, namely, that the seizure of the Cana-
dian vessels ill the Uehring's Sea was justilicd by the fact that they were "engaged
in a ]uirsuit that is in itscli" voiiira honoa morvs — a pursuit which of ncjccssity involves
a serious and permanent injury to the rights of the Government and peo]de of tho
Unitcfl States", it is obvious that two ([iiestioiis are involved: first, whether tho
imisuit and killing' of I'ur-scals in certain jjarts of tin; open sea is, from the jioint of
view of international morality, an otlense cyii/ca bonus ihhiwh; and secondly, whether,
if such be the ease, this fact Jiistities the seizure on the high si^as and subsequent
conliscatiou in time of i)eace (d'tho private vessels of a friendly nation.
It is an axiom of international maritime law that such action is only admissiblo
in the case of jiiracy or in pursuance of special international agreement. This pi'in-
cii)le has been universally adniittiMl by Jiirists, and was very distinctly laid down by
Presidi'iit Tyler in his sjieeial message to Congress, dated the L'7th Ftibruary, 1X43,
when, after acknowledging the; right to detain and search a vessel on susjiicion of
piracy he goes on to say: "With this single excc|itiou, no nation has, in time of
peace, anv authority to detain the shijis of aiiotl' • ipoii tho high seas, on any pre-
text whatever, outside th(! tenitoiial Jiirisdiition".
Now, the xmrsuit of seals in thi^ ojicn sea, unde, .vhatever circumstances, has never
hitherto been considered as piracy li\' any civi!' 'i i' state. Nor, even if the l.'nited
States had gone so far as to make the killing oi lurseals jdracy l>y their inunici|)al
h-'v, wo'ild this have jiisiilied them in j)nnisliintr otfcnses against suidi law conunitted
by any iiersons other than their own citizens outside the territorial jurisdiction of
the United States.
In the ease ()f the slave trade, a jtractice which the civilized world has agreed to
look ii])on with abhorrence, the rijjht of arresting the vess<ds of aiiothei' country is
exercised oiily by special international agreement, and no one goxernment has been
allowed that general control of morals in this resjiect which Mr. Ulaiue claims on
behalf of tli(< United States in r<'gartl to seal-hunting.
I!ut Her Majesty's Gover cut must (lUestion whellier this pursuit can of itself bo
regar;i(Ml as (■(»»<*•« honon imncn, unless and until, lorspeiinl reasons, it has been agreed
by international arranjj;<'ment to forbid it. Fur-seais are indisputably animals fene
niiturd-, and these have iiniversallv been regarded by jurists as rcH iinlliiiii until they
arc canglit; no person, therefore, can have property in them until he has actually
reduced them into {>osscssi<in b\ cajiturc.
It I'ecjnircs sonuithiiig more ilian a mere decjaiutiou that the (ii'vernmiMit or oiti-
zei:s of the United States, or even other coui tries iiiter'sted in the seal trade, aro
losers by u eeitttiu course of juoceodiug, to leutlcr tliat ooiu'se au iuiuiorai ouo,
52
ORAL ARGUMENT OF JAMP^S 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 bo jtroperly 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 tlie possession, in
which Russia bud been nndisturbed, was enjoyed by the United States Government
also without intermiition or intrusion from any source".
I will deal witli these two periods separately.
First, as to the alleged exclusive monopoly of Russia. AftT '.Russia, at the instance
of the Russian American Fur Company, claimed in 1821 ti;c pursuits of commerce,
wb.iling, and fishing from Bering Straits to che fifty-ttrst degree of north latitude,
and not only prohibited all foreign vessels from landing on the coasts and islands of
the above waters, but also ])reveuted 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 bas 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 tlie territorial jurisdictions."
That the right of lishing 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, tbe 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 Russi.an Navy. Mr. Forsythe,
writing on the case to the American Minister at St. Petersburg on the 4th of May,
1837, said:
"It is a violation of the rights of the citizens of the United States immemorially
exercised and secured to them as well by the law of nations as by the stipulations of
the first article of the convention of 1824, to iish in those seas, and to resort to the
coast for the prosecution of their lawful commerce npoii 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 purcliasing a monopoly. Having dealt with fur-bearing ani-
mals, he went on to treat of ii^iltories, and after alluding to the presence of diflferent
speciesof whales in the vicinity of tiie Aleutians, said : "No sea is now more clausum;
all of these may be pursued by a ship under any flag, except directly on the coaster
within its territorial limit."
I now come to the statement that from 1867 to 1886 the jiossession 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 operati(Uis in Behring Sea during that period.
The instances recorded in iuclosuro 1 in this dispatch are sutlicient to prove from
ofticiiil United States sources that i'rom 1867 to 1886 British vessels were engaged at
intervals in the fur-seal lislieries with tbe cognizance of the United States Govern-
ment. I will here by way of example quote but one.
In 1872 Collector I'helps rejxtrted the fitting out of expeditious iu Australia and
Victoria for the iiurjtose of taking seals in Beliring Sea, while passing to and from
their rookeries on St. Paul and St. (jcorge Islands, and recounnended that a steam
cutter should be sent to the region of Unimak Pass and the islands of St. Paul and
St. George.
Mr. Secretary 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 oil" parties going up there for that purpose, unless they made such attempt
within a nuvrine league of the shore".
Before leaving this part of Mr. Blaine's argument, I would allude to his remark
that "vessels from other nations passing from time to time through Behring Sea to
the Arctic Ocean in pursuit of whales have always abstained from taking part in the
capture of seals", which he holds to be proof of the recognition of rights helO 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 diflcrent pursuit.
The whalers, moreover, i)as8 through Behring Sea for the fishing grounds in the
Arctic Oceau ia April and May as soon as tbe ice breaks up, while the great bulk of
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
53
-seals on the
lO the people
insider what
ey would be
aerce on the
1 fisheries of
jsia, without
he cession of
lossession, in
, Government
b the instance
of commerce,
orth latitude,
md islands of
miles thereof,
Russia:
of navigation
earliest times
I the ordinary
ig fur-bearing
ssel proceeded
be purpose of
United States
'age and leave
Mr. Fovsythe,
lie 4th of May,
, immemotially
stipulations of
a resort to the
iidy occupied."
;he purchase of
nment did not
r-bearing ani-
ce of different
mare cUiusum;
tlie coast or
I'as enjoyed by
sonrte. Her
sinformed as to
to prove from
>re engaged at
(states Govern-
J Australia and
lig to and from
fcd that a steam
If St. Paul and
lev it expedient
od: "Inaddi-
n or power to
such attempt
I to his remark
Rehring Sea to
ting part in the
fghts held and
Ihing on for the
Id being iitted
Irs for fur-seals
jrounds in the
great bulk of
M<
*
the seals do not reach the Tribilof Islands till June, leaving again by the time the
closing of the ite couipels the whalerf to return.
TIic statement that it is "a fact now held beyond denial or doubt that the takino:
of seals in the open sea rapidly leads to their extiuctiou" would admit of reply, an(l
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 sutHcient ground to justify the ITnited States in forcibly
depriving other nations of any share in tliis 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 argun>ents put forward by Mr. Blaine. Till the views of tlie two
Governments as to the oblit";!; tions 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 ])iove the readiness of Her
Majesty's Government to consider whether any special international agreement is
necessary for the i>r()tection of the fur-sealing industry. In its al)sence they are
unable to admit that the case put forward ou 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 i;onceded 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, ojiposed 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 tishing in waters which, previous to their own acquisition of Alaska, the United
States declared to be free and open to all foni'jjn vessels.
That is the extent of their present oontei on 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 reriuest that you will read this dispatch to Mr. Hlaine and leave a copy of
it with him should he desire it.
I am, etc., Salisbury.
[Inclosnre.]
In 1870 Collector Phelps reported "the barque Cyanehas arrived at this port (San
Francisco) Irom Alaska, having on board 47 seal skins." (See Ex. Doc. No. 83, Forty-
fourth ('ongress, 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
" It having been officially reported to this Department by tiie collector of i ustoms
at Port Townsend, from Ncah Bay, that British vessels from Victoria cross ..\ er into
American waters and engage in taking fur-seals (which he represents are annually
becoming more numerous on our innnediate coast) to the great injury of our sealers,
both white and Indian, yon will give such proper attention to the examination of
tlie 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, Mav 4,
No. 117, p. 114.) V , . ,
In 1875, Mr. Mclntyre, Treasury agent, described how " before proceeding to harsh
measures" he had warned tlie 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. 130, p. 124.)
In 1880, the fur-seal trade of the British Columbia coast was of great importance.
SevLii 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.
64
ORAL ARGUMENT OF .TAMILS 0. CARTER, ESQ.
Tliore is tlie answer of tlu-- Govoriiinont of (5reat Britiim, and tlie
only answer coiitained in this (lii»loiiiatic corrcspoiidence, to the full
statement of the grounds of rif/ht relied nixui by the United States as
eontained in the note of Mr. Blaine; and, although I am not going into
the disciussion now of the merits, it is projx-r i >r me to call 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 :
Mr. llliiino''- loto dofends the acts complainotl of by Her Alajosty's flovernnicnt on
tlio I'lillowin.i;' j^roiiiHls:
1. Tliat " tlie C'iiiiiulinn vessols arrested and detained in the Behriiip; Sea were
enjfaged in <a pursuit tlnit is in itself contra bonos mores— n pursuit whicli of neces-
sity involves a serious and ])ornianent injury to the rigiits of the Government and
jteo])lc of the United States."
U. That the fisheries had been in the undisturbed posso'sion and under the exclu-
sive control of K'ussiii Ironi their discovery until the cession of Alaska to the United
States in 1^!()7, and that from this date onwards until 1886 they had also remained in
the undisturbed ])ossession of tlu; I'nited States Goveruniont.
3. That it is a fact now held Ijeyond denial or doubt that the taking of seals in the
open sea ra])idly leads to tlie extinction of the species, and that therefore uiitions not
possessing the territory upon wliich seals can increase their numbers by natural
growth should refrain from the slaughter of tiicm in the ojien sea.
Mr. JJlaine further argues that the law of the sea and the lilterty which it confers
do not justify acts which arc immoral in themselves, and which inevitalily tend to
results against the interests and against the w<'lfareof m.mkind; a)id he proceeds to
justify the forcible resistance of the I'nited States Government by the necessity of
defending not only their own traditional aiwl long estaldislied 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 tlie United States the assuni])tion of a jurisdiction
for the prote(^tion of good government and good morals the world over.
That imputation was hardly justified by anything which Mr. Blaine had
said. Uis ground was tiiat the pursuit of ])('lagic tishiiig was contra
honos mores; in other words it was essentially, and upon fundauiental
princij)l('S, an indefensible wrong. That, of itself, did not give the
(jovernment of the United States the right to interfere. Mr. Blaine
made no such i)r<'tention; but, when it was at the same tiiMe injurious
to a most valuable and lawful interest of the United State^% that cir-
cumstance gave, as he insisted, the authority to the Uidted States Gov-
ernment to interfere and prevent the doing of an injury to its own inter-
ests by acts which were, in thcnisrlreSj indefensible wrongs.
Lord Salisbury, further considering the i)oint put forth by Mr. Blaine
that pelagic sealing was an otVence eontni boito.s mores, says that two
questions are involved here: lirst, whether the pursuit and killing of
fur seals in certain ])arts of the open sea are, from the jtoint of view of
international morality, an otfenee contra bonos mores. This is extremely
well stated; and sec(»nd, whether, if vsuch be tiie case, this fact justifies
the seizure on the high seas and subseipient contiscation in time of
I)eace, of the private vessels of a friendly nation.
Nothing could be better stated than that. The position taken by
Mr. Blaine did raise those twcxiuestions exactly. First, whether, from
the point of view of international morality, pelagic sealing is right or
wrong. Second, whether if, from the ]>oiiit of view of international
morality, it is declared to be wntng, that circumstance furnishes to the
United States a ground ui)on which in timeof i»ea<'e to arrest ami carry
in for condemnation a vessel engaged in the practice.
What is Lord Salisbury's argument ! First, it is this: Su))pose it to
be contra bonos mores; suppose it to be against international morality}
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
65
11, and tlie
to the full
I States as
ejoiiiff into
I the atteii-
e positions
noil Jill, the
! puts them
jvernnient on
inn; Sea wore
liili of iiL'ce.s-
a>n»mont and
lor the oxchi-
to tho United
0 remained in
)f sen Is in tlio
re nations not
srs by natnral
licli it confers
italily tend to
le proceeds to
10 uec(!ssity of
i, Lnt also the
Lord Salia-
jurisdietion
1 wo lid over.
Blaine had
was contra
indanicntal
jfive the
Air. I^laiiie
le injurious
that irr-
itates (tOV-
own iuter-
]\Ir. Blaine
s that two
killing of
of view of
extremely
ict JnstiHes
in time of
taken by
ther, from
is right or
ernalional
<lies to the
:, and carry
|)pose it to
morality}
■■•♦
%
.'I
suppose it to he au 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 i)roposition 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 slie is upni
the high seas. I am not going to argue that questicm now; but 1 will
say that he makes a pretty happy use of the argument ad homincm;
and he cites from an American President, John Tyler, a pretty s(]uare
recognition of that doctrine in a s])ecial message communicated to Con-
gress in reference, as 1 assume from the date, to negotiations concern-
ing the suppression of the slave trade. I am now reading from page
208 of the Ajtpendix. 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 wjis an American in high official iiosition; but his
authority is not binding here, unless it exiu-esses the truth; and this
position taken by liim we shall show at another stage in the debate to.
be wholly without fcmndatioii. 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 iiati<m laws against "hovering"
and laws in i<'lation to quarantine, jirescribing rules and regulations
pui'iiorting to bind foreign vessels as well as national vessels, ai viola-
tion of which iijion the high seas, according to the British statutes,
would be followed by arrest and condemnation. There are many other
instances whicih we shall hereafter refer to in the argument. This is a
very brief suggestion in answer to Mr. Blaine and it does not seem to
be very satisfactory. I might add further upon the merits of the case,
that the ground is that even if pelagic sealing were contra bonos mores
it does not amount to jiiracy. If it did, any Government might sup-
press it, and suppress it upon the high seas: but, it is insisted, because
it does not amount to piracy none can. Why can any Government
suppress piracy upon the high seas? Because it is wrong; because it
is an indefensible wrong, and a wrong against all nations; and so great
a wrong that by a tacit agreement every power is permitted to take
measures to suppress it. 1 cannot perceive the force of the argument
which is based upcm a suiiposed (listinction between wrongs against
nations. If wrongs against all nations may be su])pressed by all nations,
one wrong may be suppressed as well as another, and certainly when
the commission of the wrong happens to work especial in.jury to the
interest of a jiarticular state, that state may supi)ress it.
Lord Salisbury, in coming to the other branch of the argument of Mr.
Blaine, as he states it, namely, that the praxjtice is conira bonos mores,
makes his answer very brief, and it amounts to this:
'*No, it is not conira houos mores, because nations have never agreed
that it was contra bonos mores. They have agreed that jtiiacy was such ;
they have agreed, iu part, that the slave trade was sucl;; but they
never have agreed that pela,gic 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? 1 had sujiposed
that the distiiuitions between right and wrong were deeper by far than
that. I had supposed too that neither i)iracy, nor the slave trade,
wouhl ever have been by agreement between nations regarded as wrong,
56
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
instead of right, unless by their essential nature before the agreement
was reached, they were so.
In that exceedingly bri<!f manner Lord Salisbury disposes of the long
contention of Mr. IJlaiue which condemned pelagic sealing on the ground
that it was contra honos mores and destructive of a race of aninuils use-
ful and essential to the United States, and useful to mankind. I can-
uot hell) thinking that he rather avoided, than answered, tlic argument.
He could not have answered the argument without dcalJTig with the
nature of tliat i)ursuit — its real, essential nature — inquiring whether it
was, in fact, actually destructive of a useful race of aninuils, and if so,
whether it (iould in any form be defended. I am not to anticipate the
argument which 1 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 pretentious of Kussia;
and therefore he comes to consider that i)art of the argument of Mr.
Blaine. He says:
"The second argument advanced by Mr. Blaine is that the 'fur-seal
fisheries of Behring Sea had been exclusively controlled by the Gov-
ernment of Kussia, without interference and without question, from
their original discovery until the cession of Alaska to the United States
in 1867', and that 'from 1807 to 188(» the ymssession, in which Kussia
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 Kussia 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 i)oint of fact,
she had enjoyed that right without interruption, and without inter-
ference by other Governments during the whole period of her occu-
pation, and that the United States, since it had acquired the territory
of Alaska from Kussia, had in a similur 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 Kussia, 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 protested against it; and he cites the language
of Mr. John Quincy Adams who was then the American Secretary of
State, protesting against those pretentions of Kussia. It will be
remembered that Lord Salisbury had at an earlier stage of the contro-
versy referred to this same niattej-, and had endejivored to maintain
that the United States Government had no authority to do the acts
they had done in Behring Sea, ami that they had by their own acts
shown that they had no such authority, because they had protested
against similar pretentions when nmde by Kussia. But I must again
remark that the argitnient of Mr. Blaine did not put forward the verbal
pretentions of the Kussian Government; but it put forward the matter
of fact of the crclnsive possession of these fisheries by Bussia, 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.
67
agreement
of the long
the ground
iiiinals use-
ind. I can-
L^ argument.
II g with the
f whether it
s, and if so,
ticipate the
ut 1 cannot
vaded than
is power by
s of Russia;
neut of Mr.
,he 'fur-seal
l)y the Gov-
pstioii, from
nited States
hich Kussia
Grovernment
r. Blaine as
ad an origi-
eal fisheries
t was not an
oint of fact,
thout inter-
f her occu-
lie territory
a matter of
right of fur-
question at
issia, by the
kreign juris-
Iher nations
ign Govern-
that, among
lie Language
Secretary of
It will be
I the contro-
lo maintain
Ido the acts
• own acts
protested
Inust again
the verbal
the matter
|iia, and by
observes :
laliug were
I
I
■■*
stopped in Behring Sea except on the islands in possession of the
lessees of the United States, tlie seal may increase aiul 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 sufticient 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, tiie high seas anywhere — all nations, and
the citizens of all nati(m8, are free to act upon them as they please: a
I)rop()sition which seems to me to stand refuted upon its mere assertion,
but which I sliall have occasion hereafter to deal with more particularly.
Wiiat 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
tlie 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. Blaiue already had before
him the proposition of Sir Julian Pauncefote for a mixed Commission,
which also <!arried with it a pi'oposal for an interim j)eriod 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 fi^om?
Mr. Carter. That is what 1 refer to: the draft convention. He still
had that before him, and had not answered it. While he had it before
him he receives further protest from Sir Julian Pauncefote in reference
to seizures. This is found on page 212 of the Appendix to our Case.
Sir Julian Paunwfote to Mr. Blaine.
Siii:
Wasihngton, May 23, 1890.
I have the honor to inform you that a statement having apponred in the
.«n 4.^ *1.« «0'..,.4 4-1*..*. 4.1.,, IT„:..„.l C?A.,A.... .• _ 1 _ . •■
oiii. X ju»Yc iiiD juiiKii n» iiiKinu j'uu luiiu u Hiaieiiieiit iiuving appciircd in mo
newspapers to the ed'ect thut the United States revenue eniisers have received
orders to jtroceed to Hehrinsj; Sea for the purpose of preventing the exercise of the
seal iisliery by foreign vessels in non-territorial waters, and that statement having
been confirmed yesterday by yon, 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 supi>ressing 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 correspcnidence which
1 have read of renewed efforts for an accommodation; but nothing had
been determined ui)on. 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 alreinly 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 Governu)ent of the United States. It had
k'lt obliged to proceed with tlie enforcement of measures designed to
suppress pelagic sealing, and now another proposition for negotiation
1
58
ORAL AR({U]\rENT OF JAMKS C. CARTER, ESQ.
canio in witli iinotlicr snjffjostod inoiisnrc of interim protection. And
wliiit was tliat? J ]>iosiiiiie iMr. Jilaine naturally exiioctcd that any
measure of intarim inotection would be as broad and effective sis tlie
one which had been orijiinally ]nx)i)()sed by the liritish Government for
linal and i)erinanent protection. lie had expected that; but now he
had this pro])osition 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 jtoriod 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. Tiie correspondcMice which had already occurred had
stret(!lied through years. If the effort to come to an agreement by con-
vention should fail, the snggestion 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 proiiosition carried with it the probability that meas-
ures designed to settle the controversy and to ])reserve the fur-seals from
extermination would be in piogrcss of adjustment for a ])eriod of at least
live 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 i\lay and .Tune, October. Novc^inber and ])eceml)er, leaving
them exposed to capture and extermination during the most important
months of -Inly, August and September.
Well, in his view — it seems to me a not unreasonable one — this proposi-
tion carried with it a certainty almost that the whole racc^ 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. Tiiat answer is contained in his letter of
May 29, 1S90, as it is found on page 212. It is too long to read, and it
is not sufliciently imjjortant to l)e read; but I must summarize the con-
tents as well as I may.
It contains the recital of the A'arious 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 :
Wlipii yon, Mr. Minister, arrived in this roniitry a yoar n^o, there seenietl the best
prospect for a.settlt^nienr of tlii.s question, but tlic Russian minister aiul tiie American
Secretary of State liave liail tlie experiences of Mr. l'lieli>s and tlie linssiau ambassa-
dor in lionilon re]teate(t. In our early interviews there seemed to be as ready a dis-
])()sition on your i)art to come to a reasonable aud friendly adjustment as there lias
always been on our i)art to oiler one. You will not for;ret an interview bcitween your-
self, the liussiaii minister, and niyself, in which the lines for a close season in the
Behriug Sea laid down by Lord Salisbury were almost exactly repeated by yourself,
and were inscribed on ma])8 whiisli were before ns, a copy of which is in the posses-
sion of the Russian minister, arid a copy also in my possession, A ])rompt adjust-
ment seemed practicable — an adjustment which I am sure would have been lionorable
to all the countries interested. No obstacles were ])resented on the American side of
the (juestion. No iiuist(Mi('e was made upon the Hehrins Sea as mare clansum ; no
objection was interposed to tlie entrance of Ib-itish ships at all times on all commer-
cial errands thronf>h all the waters of the Behriny; Sea. But our negotiations, as in
Lmidon, were suddenly broken olF for many weeks by the interposition of Canada.
When corresi)oudence was resumed on the last day of April, you made an oflfer for a
mixed commission of experts to decide the <|uestion8 at issue.
Your pro])osition is that p'dagie sealing should be prohibited in the Behring Sea
during the months of May, .Funo, October, No\ amber, and ]>ecembor, and that there
should b(^ no prohibition during the months of .Inly, August, and September. Yonr
proposition involved the condition that liritish vessels should be allowed to kill seals
■within 10 miles of the <'oiist of the Pribilof Islands. Lord Salisbury's proposition
of 1888 was that durinu; the same months, for which the 10-mile privilege is now
demanded, no Britisli v»'sscl hunting seals should come utMirer to the Pribilof Islands
than the 47th parallel of north latitude, about 6i)0 miles.
The ojien season which you thus select for killing is the one wlien the areas around
tlie breeding islands are most crowded with seals, aud especially crowded with female
ORAI. ARGUMENT OK JAMES C. CAKTEU, ESQ.
59
^tioTi. And
((1 tliiit any
I'tive as the
ernnient for
but now lie
was it? To
at the expi-
nnule to tlie
I agreement
;ake, no one
(jcnrred had
nent by con-
le abitration
uld take, of
y that meas-
ir-seals from
imI of at least
ition for the
in daring the
iber, leaving
st important
-thisproposi-
ic(^ would be
d; and when
■^, measure of
his letter of
} read, and it
rizethecon-
lat time had
II agreement.
oonied the best
fl tlic American
ssiiui ainbassa-
;i8 leiuly a dis-
it as there has
butwi'.en your-
n season in the
B(l by yourself,
i in the posses-
jirompt adjust-
Ibeen honorable
uerican side of
lie clansum ; no
in all comnier-
)tiationa, as in
lion of Canada,
an offer for a
le Behring Sea
laud that there
Iteinbcr. Your
led to kill seals
's nroposition
Hvileye is now
[ribilof Islands
|e areas around
ed with female
seals ),'oiiiK ibrth to soc^ure fond for the hiindrpdHof tliousfinilsof their younjj of which
tlii^v liuve rcctntlv liccn delivered. 'riKMleistniction of the feuiiiles wliicli, aecordiufj;
to e\|>eit testimony wonld be St") per cent of all wliieh the seiilinj; veHsels niinht
readily eaptiire. W('iiiM inllict deadly luss uimn tlie rookeries. Tlio destriK'tion of
till! leiiiMlrs would be f(dl()\ved liy tlie dest ruction of tiieir yiiuiif; on the islands, and
tlie liordN would he diniinished tlie next year by this wholesale slauj;liter of the pro-
diu'iiiK rcmiiles and tiieir otl'sprinu;.
Till! ten-mile limit would jjive the miiritudcrs the vantage ground for killiu<j the
seals that are in the wafer by tens of thousands scardiiiif; for food. The oppor-
tunity, under cover of fog and ni<;ht, for stealing silently upon the islands and
slaughtering the seals within a miit^ or even less of the keejier's residence would
largely in(!reasellii'a.L,j;n'gate destruction, rndersuch conditions the Ikitish vessels
(•(urideviiily divide with the I'nited .States, within the three-mile limit of its own
shores and iijioii the islaniis themselves, the wlude advantage of the seal lisheries,
Tlie respect which tlie .sealing vessels would ))ay to the ten-mile limit would be the
same that wolves ])My to a (lock olslieei)so jdaced that iu> shepherd can guard tliein.
1'his arrangeuicnt ai'cording to your projjosal, was to continue for three months of
each year, the best months in the se;ison for dcjiredations u))on the seal herd. >iO
course was left to the I'liiteil .states or to Russia but to reject the pro))osition.
'J'hc i)ro))ositi(iiis made by Lord Salisbury in 18X8 and the jiropositions made by
iler Majesty's Minister in Washington in W,)0, are in signiticant contrast. The cir-
eumstaiices are the same, the conditions are the same, the rights of the United .States
are the saTiie, in Ixith years. The position of England has changed, because the
wishes of Canada have demanded the duuigc!. 'I'lie result then willi which the
United .States is expected to be content is that her rights within tlie Heliring Sea
and on the islands thereof are not absolute, but are to be determined by one of Iler
Majesty's ]>rovince8.
This proposition was reccivcMl by IMr. Blaine with some considerable
degree of imi»atienee, as will be observed, lie seemed to lee! that he
was (;onfr(mted at nil times with the objection of Canada, nnd that the
objection of Canada was in all iiistiince.s perfeittly eflective to prevent
the approach to any accoiniiKxhitioii. For my own part I see no objec-
tion whiitever why Great Britain, before she slionld come to an arrange-
ment of this .sort, should consult Canada; because ('iinada was tlie
province which was more immediately interested. I see no reason for
comiilaint ujion tiiat score. It is a little ditterent, however, when we
come to consider the circumstance that originaliy, when the proi)ositi(m
made by Mr. I'helps was provisionally accejiteo' by Lord Sali.sbury, it
was not stated that it would be dependent upon the wishes of Canada,
or de[»endent upon the result of investigations mf^.de after ('anada had
been consulted. Had that been stated at tlnu time it would have pre-
vented the raising of expectations only to lie disai)pointed.
Tliese observations, of cour.se, do not i^^late to the merits. They are
designed to ex])lain the progress of the negotiations and the sentiments
of tlie negotiators from time to time; and, at this jioint of tiling it is
very observable tliat there was on the ])art of j\lr. Blaine a feeling of
great im])atience, as if he had been in some manner wronged.
Senator Morgan. Mr. ('arter, wiiat is the date of th; t letter, if you
please, that you are reading from Mr. Blaine?
Mr. Cakter. May 2!), lSf>0.
Senator Morcan. if it would not distitrb you T would like to call
your attention to page 4(51 of vol. 3 of tlie Ajiiiendix to the British
(Jase, to a note from the Marquis of Salisbury to Sir Julian Pauncefote.
Its number is 332.
Mr. CARTEif. I have it.
Senator Morgan. It is very short, and for the purpose of calling
your attention to the particular language of it 1 nill read it:
Sir: I have received your dispatch of the 2!lth ultimo covering copy of a note in
which you submit to Mr. iUaine the draft convention which has been approved by
the Government ()f Canada for the settlement of the Hehring's Sea fisheries (juestioii,
as well as a copy of the draft convention itself.
Ihe terms of your note are approved by Her Majesty's Government.
f
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 {jfrounds 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 sufjgeation of the learned Arbitrator that the
terms of the draft convention proposed by Sir Julian Pauncefote had
received the approval of IJer Majesty's Governmentt
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-
erinnent had been approved by the British Government.
Sir John Thompson. That note referred to there was the note of
Sir Julian Pauncefote layinjjf it before Mr. J>laine.
Senator Morgan. Yes; I refer to the discrepancy between that note
and the draft convention.
Sir Charles Kussell. There is no discjrepancy.
Senator Morgan. We difter 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
agreeable to tlie Government of Canada, it was approved by the Gov-
ernment of Her Majesty.
Sir Charles Kussell. May I point out, with the permission of my
friend, that this is a matter in which my learned friend and I will not
ditt'er. 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 Imi)erial Majesty is the
only Government which diplomatically could convey the matter to the
United States Government.
Senator Morgan. 1 compreheud that.
Sir Charles Kussell. And indeed it was necessary to convey, and
only necessary to convey, the fact that the Imjierial Government had
approved it.
Senator Morgan. I certainly comprehend that; but if in this cau-
tious note of Lord S.alisbury he says the Government of Canada has
approved of a draft convention and the Government of Her Mjjjesty
has approved Sir Julian's -.lote to Mr. Blaine, and then if there is a
material and wide discrepj jicy between the arguments and the state-
ments in Sir Julian Pauntefote'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 ai)prove 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 h^s conduct in transmitting
in the way he did that draft convention to the Government of the
United States, it amounts to an approval of tb*^ convention itself.
Senator Morgan. But it is an approval based on the consent of
Canada.
Mr. Carter. That is undoubtedly one of the reasons — perhaps the
only reason. It was an approval which had been moved, which was
m
'•<.',
OKAL AIiaUMENT OF JAMES C. CARTER, ESQ.
SI
distinction
lii« note in
1 approved,
tor that the
iicefote had
aval of the
ry; but the
States Gov-
the note of
en that note
ian Puunce-
osed by him
cause it was
by the Gov-
lission of my
nd 1 will not
the Imperial
da approved
[ajestyis the
natter to the
> convey, and
rument had
in this cau-
Canada has
Her Majesty
lif there is a
nd the slate-
in the draft
the note of
by the Gov-
[pproved and
mgh for the
Irceived; but
li Pauncefote
\ia note with
t^tes.
transmitting
[ment of the
In itself,
consent of
j-perhaps the
which was
bnsed upon, if you please, the approval of the Government of Canada.
I suppose it is quite numilest all along here that the approval of the
Government of Great liritain 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 somewlnit
imi)atient. 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
upcm which the British Government decided what course to adopt.
Whether the Canadian Government has an intluence upon the deci-
sions of the Imperial Government is a matter of interior (jonsideration
by the British Government itself; but we have as a party only the
British Government.
^ Mr. Carter. That is quite true. I am not giving any material con-
fP sequence to the consideration whether the Government of Great
J Britain awaited the action of the Government of Canada, or made its
own action dependent upon the (Government of Canada, except in tliis
point of view, so far as it explains the temper, the disposition of the
corresponding diplomats, aiul the grounds and reasons why one side
: may have thought tliat they had a complaint against the other for
delay. It is pertinent iu that point of view, and in that point of view
" alone, as I conceive.
Senator Morqan. I beg leave to say this in defence of my position :
! Mr. Carter read with great emphasis this clause from the letter of Sir
. Julian to Mr. Blaine on page 455:
"It has been admitted from the commencement that the sole object
)^ of the negotiation is the preservation of the fur-seal species for the
i benefit of mankind, and tiiat no considerations of advantage to any
^3 particular nation or of benefit to any private interest should enter into
a 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
I the Pribilof Ishmds were exposed during the most dangerous period
I of the year to extermination by the Canadian scalers. He, as I under-
"^ stood, inferred from that that Her Majesty's Government had changed
1 its ground upon the question of the duty of both Governments to pre-
' serve the seal herds from extermination.
ji Mr. Carter. I beg pardon; I did not intend to so argue. I see no
^evidence here that the Government of Great Britain at any time
^§ changed, atj 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 a(;tually 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 difierent opinions may be entertained; but
that they ever changed their grouiul 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 extracits, of May
2!)th, addresses another letter to Sir Julian Pauncefote before he hail
received a reply, which was this:
G2
ORAL ARGUMENT Of JAMES C. CARTER, ESQ.
Mr. Illdiiic to Sir Julian I'uuHctfolc.
DicrAUTMKNT OK Statk, ff'aiihinfjton, June S, ISOO,
My Dkaij Sill Jit.ian: I liiivc had a |iioloiij{u<l inttrviow witli tlio I'roHidfiit on
tlie mill It'iH ii|Miii wliii'li W(i art; eiidt'iivoriii;; to ('iinio to an a^rticiiii^nt toiicliiiii; tlio
I'ur seal i|ii(!siion. Tlic I'lcsidcnt <'Xpii'sscs the opinion tliat an arliitratiuii can not.
1)0 I'oiicliidcd in liiiut lor lliis H<;aNon. Arldl ration ih of littiu viilno iinlt-HH condnrtcd
wilii the iiioHt carct'iil ilclilii'i'iition. Wlial llic I'l'cNldcnt inost anxiously dcHircH to
know is wlictiicr Lord SaliHiiiiiy, in ordor to prunioto u Iricndly Holiiiion of tlio
(liit;slion, \\iii iiiakt> lor a hin^ilo Hcanoii tlio ri'^nlation wliiidi in IWH lie oIVitimI to
iiiako pci'iiiaiicnt. 'I'iio i''i'<>sid('iit r<";arilH tliat as tlir step wliich will liad most
cui'tainly and iiiotit piuinptly lo a, t'licndly agreomont butweeii thu two UovorniiifutH.
1 uui, etc,
Jaxiks G. Hlaink.
Tlio two Goveniments now a])i)ear to have come to a (le<'icU'{l difter-
eiicc lesijectiiij;" ti, ' measures wliicli they were inepared to assent to
providiii},' for an interim preservation of the seal. We have a eoiiinin-
nieation here from Sir .Julian tiiat Lonl yalisbury tiiinks tli;»t the
nieasnre proposed in ISiSH, and provisionally aeeepted by liim, \ its too
extreme a measure. He is not i)repared to assent to it, and siijif-i-sts
a furl tier dilliculty, namely, that, in the absence of le{j;isliitioii by
rarliameiit, the (iovernmeut would not bo enabled to enforce it upon
British vessels.
In answer to the sn<jjjestion of an iiiability to exeente such a restrict-
ive provision without an act of Parliament, 1 will say, without reading;
the (!orreHpondenee, that Mr. IMaiiie sufijicsted that the United i:^' ites
(iovernment woidd be satislied if, without an act of I'arliani 'ut, fb"
G()vernmeiit of Great I'.iitain would issue a proclamation foruui liii}>'
pelajiie sealinjr, or iciiiiestinj; vessels to abstain from it. That pro-
posal was answered l)y Sir Julian on the 27th of .hiiie. 1 read from
paye --3 of the lirst volume of the American Appendix:
Sir Julian ruunicfote to Mr. JSIaiiie.
Washington, June S7, 1S90.
Sik: I did not fnil to transmit to the Marqnis of Stilibbniy a copy of your note of
the nth instant, in which, with rercreiice to his ]ordshij)'s Htatement that British
legislation would b(; necessary to enable Her Majrsty's (iovenimeiit to exclude Brit-
ish vessels from any ]>ortion of tlu! high seas '•evi.'ii for an hour'', you inlbrmed me,
l)y desire of the I'rcsident, that the (iiiitcd States (JoverniiH.'iit would he satislied
''if Lord Salislniry woiilil liy piililie ]iroelamali()ii simply reinicst that vessels sail-
ing nnder the British tlag should abstain from entering the Behring Sea during the
jiresent season ".
I iiave now the honor to inform yon that I have been instructed by Lord Salisbury
to state to yon in rejily that the rrcsident's n^jnest ]>resent8 eonstitutioiial difli-
culties which would preclude Her Majesty's (jovernmeiit from aceinling to it, exce]it
as ]»art of a general scheme for the settleiiunt of tht- Behriiig Sea eontroviirsy, and
on certain conditions which would justify the iissuiiii)tion by Her Majesty's Govern-
ini'iit of the grave responsibility involved in the proposal.
Those conditions are:
T. That the two d'ovcrnments agree forthwith to refer to arbitration tlio question
of the legality (d' the action of the I'liited States Government in seizing or other-
wise inti'rferiiig with British vessels engaged in the Behriug Sea, outside of terri-
torial waters, during the years 18S(), l(S.s7, and lS8t).
H. Tliat, ])ending the award, all iuterlereuee with Ihitish sealing vessels shall
absolutely ceas;'.
IIL That the I'nited States Government, if the award should bo adverse to them
on the (piestion of legal riicht, will eoiniieiisate British subjects for the losses which
they may sustain by reason of tlunr cnmpliance with the British ]iroclamiition.
Such are the three conditions on which it is indispensable, in tiie view of Her
Majesty's Governnu'iit, that the issue of the i)ro])oscd ])roclamation should be base<l.
As regards the coiupeusatiou claimed by Her Majesty's Government for the lobses
ORAL AUGUMKNT OF JAMKS C. CARTER, ESQ.
63
'line S, ISno.
I'reHidt'iit on
toiidiinn tlio
atioii I'liii not
I'hN coiuliictod
isly (IfsireH to
)1 lit ion ot tlio
lio <)ll'cr4Ml to
ill It'iid iiioHt
IJoveinnitaits.
G. Blaink.
I'ided (liftm--
to assoiit to
,e a coiiinm-
ks tlii't the
till), v us too
111(1 SUOf-CstS
;;isliitioii by
torce it upon
vA\ a rcatriet-
hoiit readiiif;
Iiiited i^ ttes
i-lianv'iit. rl'"
n I'oroui liiiji
That i»ro-
1 read I'roni
Nnc,'?7, 1S90.
[of your note of
I'nt'tliat IJritisli
;o exclnde lU'it-
lu inloruied nie,
lid 1)0 satislicd
liiit vcshcIh siiil-
Scii during tho
J Lord Salisbury
(titnlioiial ditli-
\nfi to it,cxio]>t
mtrovcvsy, and
Ijesty's Liovern-
[m tlio qncstiou
Ri/.infi; or otlicr-
jutsido of torri-
lig vessels kIuiU
Idverse to thcni
[lie losses which
Iclaniation.
lie view of Her
lioiiUlbe based.
It for the loHsea
and injuries sustained Ity Hritish stiliJectH hy rensoa of the action of the I'nited
Slates (ioverniiient auainst liritish se.tliuK vessels in the Ilehrlii;;- ^ea durin;; the
ye:iis IHHCi. ISKT, and IHMsl. I have already informed i.oni Salisiiury of your iissiir-
iiuee that the Inited iStateo (iovernment would not let that eliiiiii stnnd in the way
of an aniieahle adjiiHtiiien' <.»' the eontroversy, and 1 trust that IIk* reply wliieli, i»y
direetion of Lord Salislmry, I have now the honor to reliuii to the i'ri'siilent'M
ini|uiry, may I'ai'ijitale the alraiiimeiit of that ohject for whirli we have so loni; and
so earnest Iv lahorud.
I have, etc., Jtil.lAN I'ai niimotic.
T\hi IMjksidhnt. If you have <'oiue to tho cud of a braiiili of this
aid>i('('t, I think it woidd be well to iidcniipt licic.
|Tht'. Tribunal tiieieupoii t(»ok a recess. J
On rcasseinblinj''
Tli(! I'UKSiDKNT said: Mr. Carter, will you resunui your arpjiuncnt?
Mr. Caktjou. I had Just read Sir .Iidiau l'aunct'l'ot«!\s note, to Mr.
lilaine, in wliich he conveys the terms under whicii Lord Salisbury was
prepared to accede, to Mr. IJhiine's recjuest that the IJritish (ioveiii-
iiiciit wotdd, by proclamation, i-ecpiest an absti'ution from itehifiic seal-
inj; in Jjeiiii};' Sea durinj;" the tiien comiiii;' season, or i)re.sent season.
The Arbitrtitors will ol>serve that Loi d Salisbury stated that there weie
fjrave constitutional dilVieulties in the way of taking;' the <!o irse su<j-
fiested, aiul that the British (iovernment coidd not a<lopt such a cotirse
as thai tinless there were a very complete Justification for it: that it
created a resi»onsibility whiciii the (iovernment was not prepared to
assume unless theie was v«'ry <;i'eat occasion for it, but intimated that
if three conditions were cumplied with, they would, notwithstanding;',
make that retiuest. Those conditions wert^ that tlic^ two (jovernnients
should forthwith aj^ree to snimiit to arbitration the (piestion of the
leoality of the action of the United States (iovernment in makiiif; the
sei/ui'cs; that, jieiidinj? the award, all iiiterfeience with Jiritish vessels
by the United States should cease; and third, that the United States
(jiovernment, if the award should be adverse to it on the (piestion of
leyal ri^ht, would compensate IJritish subjects for their losses.
The learned Arbitrators will observe — of course, they, cannot fail to
ob.serve — throuj^hout this coriespuiMlence the play of diplomatic skill
and ability on tiie part of each side in dealing with the other, and it is
ob.servable in tliese views of Lord Sali.sbiiiy. lie found that the Gov-
ernment of the Oiiited States were extremely anxious to prevent pelajiic
scalinjL? iu Berin.!;- Sea during- the coming season: that, unable to get
anything better, tiiey would content themselves with a recpiest from
the British (loveniuieut by proclamation that such sealing should not
be engaged in. JMiiding that they were so anxious uiion that score, he
thought that by ac(;cdiiig to their views in that paiticular he might
gain certain advaiitagej^: tirst, absolute non inlerference with British
sealing vessels during the pendency of the negotiation, and, second, a
reference to arbitration, wliicji should iiu'lude, not only a determination
ui)()n the questions of right, but also a determination upon (piestions
of alleged damages sustained by Briti.sh vessels. The Arbitrators will
here ])erceive the lirst direct suggestion of the scheme of an arbitration
upon the questious of riaht. That is the principal feature of this letter.
It is true that an arbitration had been at an anterior period suggested
by Sir Julian raun<',efote; but it was to be the arbitration of a friendly
(iovernment, in case the two Governments should not tind themselves
able to agree ui)ou the (luestion of rcfinhttions, after they had receivcnl
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 rctjnUitiom. The arbitration here suggested
amm
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 lind hei-e, therefore, the first germ of
that fliiiil submission of the matters in dispute to arbitration whicli
eventually grew into the treaty under '.vhioh our present proceedings
are had. I may at once refer, although it is not in the order which I
had adoi)ted, to the answer of "Ir. Blaine to this proposal. It is fouud
in Lis letter of July 2, 1890^ ou page 239.
3
.3f
Mr. Blaine to Sir Julian Paunccfote.
Dkpaktmknt of Statk, Washington, July S, 1S90.
Sir: Your note of tbe 27tli ultimo, covering Lord Salisbury's reply to the friendly
Rugeestiou of tiie President was <luly received. It was the design of the Presideut,
if Lord Salisbury had been favorably inclined to his proposition, to submit a i'orm
of settlement for the consideration gf Her Majesty's Government which the Presi-
dent believed would end all dispute touchijig privileges in Rehring Sea. But Lord
Salisbury refused to accept the proposal unless the President should "forthwith"
accept a formal arbitration, whicli his lordship prescribes.
The President's recjuest 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 answer comes so late that it would be
imiiossiblo now to proceed this season with the negotiation the President had
desired.
An agreement to arbitrate requires careful consideration. The Uuiied States is,
perhaps, more fully committed to that form of internationiil 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 inisa)>prehended what I said touching
British claims for injuries and losses alleged to have been intlicted upon British
vessels in Bchring Sea by agents of the llnited St.ites. My declaration was that
arbitration would logically and necessarily include that point. It is not to be con-
ceded, but decided with otJier issues of far greater weight.
I have the honor to be, sir, etc., Jamks G. Blaixe.
The learned Arbitrators will remember the letter which I read some
time ago, before the recess, irom Mr, Blaine to Sir Julian Paunccfote,
written perhaps under some measure of irritation at what he supposed
to be the unreasonable delays of (Ireat Britain and the shifting of
ground by her iu respect to interim niea.sures of protection. To that
letter the jShircjuis of Salisbury writes an answer, or writes a note
designed to be an answer, to Sir Julian Paunccfote, 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 230 of the
Api)endix to the American Case.
The point? that he endeavors to make In it arc substantially these:
that the agreement which was originnlly made between him and Mr.
Phelps in reference to the close season was a provisicmal agreement
only, not designed to be linal; and tiie intimation is that the United
States were hardly 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. Plielps, 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 subsecpient period, which, indeed, is
true, although it was not until after a considerable delay. In the next
place, he says that Mii delay of two years whicli has been occasioned
was not solely iu couscr.ience of the objei tions of (.'anada, but that it
was luade necessary i)* - usequcnce of a divergence of views between
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
65
I also upon
st germ of
ion wliicli
roceedings
er which I
It is found
nly 2, 1S90.
I the friendly
he Presuleut,
ibiiiit a I'orm
ich the Presi-
a. But Lord
i "forthwith"
to a friendly
iiopositiou 18
; it would be
'resident had
Lied States is,
leiit than any
ition shall he
I between the
said touching
upon British
tion was that
not to be con-
G. Blaine.
I read some
Pauncefote,
le supposed
shifting of
1. To that
•ites a note
20th day of
liscussiou, I
lid deem it
[e 230 of the
[ially these:
\m and Mr.
agreement
the United
He then
light enter-
|ie, stated to
reach the
|!cei)tance of
[not at first
li, indeed, is
lln the next
occasioned
but that it
/s between
-i
the two Govennncnts in resi)ect to the necessity of a measure so
stringent as that for the i)reservation of the fur-seals; nnd that, owing
to the remoteness of tlie region from which information w:is obtainable,
a long period of time harl n(;cessarily elapsed in tlie effort to gain
information up<m which the government could intelligently act. He
intimates, besides, tliat some delay, at least, Avas chargeiible to political
emergencies in the United States, meaning, 1 s.ijjpose, the cliiinge of
administration from that of President Cleveland to that of President
Harrison. That is, T believe, a fair statement of the i)uints sougiit to
be made by Lord Salisbury in this note.
The next feature in this stage of the (controversy to which 1 call the
attention of the Tribunal is the letter of iVlr. Plaine to Sir Juliiin
Pauncefote of June 3(lth, 1890, which is found on page 224 of the
American Appendix. This letter of ^Ir. Pilaine is impnriant, inasmuch
as it takes up the argument upon the questions in dispute, as that
argument was left by Lord Salisbury's reply to Mr. lUaine's letter, in
which he fully set forth the jxisition of the United States. The Arbi-
trator>"; will remember tlrnt 1 read Lord Salisbury's reply and brielly
commented upon it, pointing cut, wluit appeared ui)on the face of it,
that it was rather an attempt to avoid the ground taken by Mr. IJlaine
than to really answer it; to pass over the ground of Mr. Ulaine and
again rely upon the s'ttitude tak'n by the United States in 1S22, pro-
testing against the ])retensions of Pnssia to an exceptional marine
jurisdiction in Eering Sea. The disposition of Lord Salisbury, 1
remarked, seemed to me to be to draw away the discussion from the
substantii'l ground taken by Jlr. Blaine, that of inherent and essential
right, and to engage him in a disiaission in icference to the validity of
Eussian pretensions in Behring Sea.
If 1 were iiermitted, and if it were worth while, to criticise the ))osi-
tion of Mr. 131aiiie as a controversionalist, or a negotiator, I should say
that he took an unwise step in responding to this suggestion of Lord
Salisbury and sullering himself to be drawn away from the im[n'eg-
nable attitude on which he stood — imi»regnal)le, as it seems to me — and
which Lord Salisbury had undertaken, as 1 think, to avoid — and ]»ass
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 Salisl)ury: '' I do not
think you have answered the ]»ositions which I have taken: and the
posititms whi(5h 1 have taken are the gr(Uinds, die main grounds, upim
which the United States bases its contentions; and I shall expect a
further and more satisfactory answer to them if it can be made". Ibit
he did accept the invitation of Lord S disbury, and he took up this
question of the Knssian assiuniitions ol authority in Beitring Sea and
wrote a long letter in relation to it.
That letter, again, is too long to be read, and mtt of sullicient imi)or-
taiice to be read. The only importance that it has ii; the aspect of the
cimtroversy which 1 am now presenting to the Tribunal is that it
exhibits a stage in the discussion of this question of Russian jneten-
sions in Jiehring Sea. It is the answer on the ])art of the Ignited
States Government, and the first answer tliat the United St;;tes Gov-
ernment ever made, to the argument of Great liritain that K'issia had
origiually made pretensions sindlar to the one then made by the United
States: and that these pietcnsions, when made i)y Bnssia in 1.S21, wert!
resisted by the United States (Jovernnient upon the same grounds
up(m which Great Ihitain was now resisting the pretensions of the
Hiiited States. That was the argument of Lord Salisbury, and Mr.
Blaine makes an answer to it Lere.
11 S, VT XII 5
1
^1
: M
66
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
I must attempt to summarize that auswer of Mr. Blaine, without
reading the letter, which is very long-, and which I assume, of course,
the learned Arbitrators will themselves carefully read. I must
endeavor to present a summary of it, and it is this: Mr. Blaine's
argument is that long prior to the year 1821, Eussia had, by prior dis-
covery and prior occupation, gained an absolute title to all the territory
surrounding Bering Sea; thatujion the Siberian coast she had no rivjil
Avhatever, and had complete possession of the whole territory from Ber-
ing Straits down to the 4:7th i)arallel 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, sit least, and that she had dis-
covered, and asserted her title to, the whole cliain of the Aleutian
Islauds: that all that was long prior to the year 1821, indeed ])rior to
1800: that in the year 1821 she issued her celebrated ukase, the prin-
cipal i)oint 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 i)urpose of protectting that product and that trade, a right to
exclude tlie vessels of all nations from a. belt 100 miles from the shore
along all the islands and coasts of the sea. Tliat 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 assumi)tiou of authority over the sea, nor to
any assuniption of authority over the shores of Bering Sea, as to
which the wliole world admitted thiit the title of Bussia was exclusive,
but to the extension of her assertions of exclusive donuniou on the
coast from about the ])aralh'l of 54 North latitude down to the parallel
of 51. The point of Mr. Blaine Avas tluit the objectionable feature of
the ukase in the eyes of both Great Britain and the United States was
the assumption of exclusive territorial sovereignty orer this cofl«f, from
the southern part of Alaska down over a long range of coast which
had been familiarly (billed in coiJimerce 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 ditferent nations in
commerce. IMercliants in the United States had a large trade up there.
Great Britain had a large trade there, and liussia had a very consider-
able trade up thi^re.
.The I'HESiDioNT. And Spain also.
Mr. Car'J'ER. And Spain also had some, although I do not know
how much it amounted to comnu'rcially. She had made pretensions,
of course, as we all know, Avhich were subsecpiently transferred to the
United States.
The rKJOsiDKNT. On a(!count of the possession of San Francisco, on
that coast.
Mr. Cakteu. Ah, lower down, of course, Sjiain had great preten-
sions; but San Francisco, 1 tiiink, was ratlier below Avhat was com-
monly leiined the Xortliwest ('oast. Spain chimed to parallel (iO, I
know; but 1 am speaking of the extent of connnercewliich she actually
had ui> theie. 1 do not tliink it was very considerable. Her claims
extended ui> there, tliat we know. 1 am spcsakingof the fact that this
Northwest Coast, so called, was the theatre of a very extensive trade,
])rin('ipally carried on by three great i)()wers, Great Britain, tlie United
States and Itussia. Mr. Bhiine's argument was tliat the i)rincipal point
of contention between these (iovernments was the sovereignty assumed
by Bnssia over that coast, which, if successfully maintained by her, would
exclutic both Great Britain and the United States from the benefit of
that tiade.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
67
le, without
of course,
. I must
r. Blaine's
Y prior dis-
le territory
ad no rival
y from Ber-
liuity: that
Bering Sea
•ing Straits
le had dis-
le Aleutian
eed prior to
50, the prin-
bt to all the
region, and
e, a right to
m the shore
assumption
the United
ind of their
1} sea, nor to
: Sea, as to
IS exclusive,
in ion on the
I the i)arallel
le feature of
II States was
i.s' coast, from
coast which
ts and navi-
Coast". It
Lt nations in
jule up there,
ery consider-
lo not know
[pretensions,
ferred to the
pancisco, on
Ireat yneten-
lit was com-
]arallel (iO, I
she actually
ller claims
lict that this
jnsive trade,
L the United
^ncipal point
liity assuine»l
l)y her, would
lie benefit ol
According- to Mr. Blaine — this was his argument — th.at contention
was settled between the United States and Hussia by the treaty of 1824,
and between (Ireat Uritain and Russia by the treaty of 1825, and that
tlie ukase of 1821, except so far as it was modilied and displa<'ed by
tliese treaties, continued to stand. That was his main proposition:
that to a ceitiiin extent the pretensions asserted by the ukase of 1821
were yielded and siureiulered by those two treaties, and so far as they
were not thus yielded and surrendered, they continued to stand.
Kow, according to his argument, the only particulars in whi(!li those
pretensions were surrendered were these: a boundary line was estab-
lished— a southern boundary to the i)retensionsof Kussia, aiul that was
54°, 40'. The territory in dispute, which was between 00° and 51"^ was
thus divided, you nuiy say, in two parts. 54°, 40' was taken as the
dividing line. Down to that dividing line, by this treaty, the sover-
eignty of Kussia was recognized as complete and i)erfect; and south of
that boundary, tlie sovereignty of I'ussia was excluded by her agree-
ment not to make any more settlements south of it. In the course of
this whole discussion, no ])retensi(m was ever made by either Great
Brit'.iin, or the United States, to any trade in these Bering Sea regions,
oi' to any interests in these regions at all. Great Britain and the
United States made no assertions of any interest in these regions of
Bi'iiiig Sea at all. They luul uove at that time. Everything embraced
by those regions was in the undisputed ])ossession ot Kussia. There
was no desire to interfere with it, and, consequently — this was the
conclusion of Mr. Blaine. —
The Tkesidknt. You si)eak of the coasts oidy.
Mr. Cautkr. Well, 1 speak now of the sea as well. I am giving Mr.
Blaine's argument now.
Lord IIannkn. It is not yours — you do not adopt it?
Mr. Carter. I am not now adojjting it. Whether I will adopt it or
not, and how far 1 sulopt it, will be seen at a later stage in the argu-
nuMit. But this is his argument, that all the pretensions of Kussia,
M'hether u])on the sea, or upon the land, Xorth of the (tOth 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 Kussia, and no contention was
made in reference to them.
Sir CiiARLKS KussELL. yorth of 540, 40' you mean?
Mr. Oartkk. No: north of 00°, I mean, at the time when the pro-
tests were made, and the negotiations were entered into. Everything
North of 00° was un(lisi)utably the i)roperty of Kussia, and no conten-
tion was made on the part oi" either Governnu'nt in reference to it.
Tlu! region of controversy vas kSoiith of that, between that, and lati-
tiule 51°. The whole controversy was in reference to that region, aiul
the adjustment atlected that region alone. It did not alfect, and was
not designed to alfect— it could not have alfecte<l— the undisputed part
of the territory. So the linal conclusion of Mr. Blaine was that tlu^
pretentions of Russia asserted by the ukase of 1821, so far as resi)ected
r>ering Sea and the islands in Bering Sea, and so far asrespec^ted land
and water both, were unaffected by the treaties of 1824 and 1825, and
therefore they stood not only unaftected by those treaties, but, because
they were left uimflected by those treaties, admitted by those two
powers to be valid and legitinuite. That is his argument.
Flow far that argument may be sound, and where it may be weak, it
it is weak at all, will form the subject of a brief discussion, upon which
1 shall enter at a subse(pu'nt stage. I am now merely presenting the
argument contained in this letter of Mr. Blaine's.
fti
68
ORAL ARGUMENT OP JAMES C. CARTEE, ESQ.
The arfjuTneiits between these diplomatists kept varying, all along
during this correspondence, sometimes dealing with the real questions
in the controversj'^, 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 character, found on
page 240, 1 will next notice.
This is a letter from Mr. Blaine to Sir Julian Pauncefote, and is
designed to be an answer to Lord Salisbury's note which I have 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. I am not going to read that letter either.
The President. You mean the failure of the draft convention?
Mr. Carter. No: I mean the general failure from the beginning.
You will remember that Mr. Blaine had written a note to Sir Julian
Pauncefote marlved by something of acerbity, in which he comjilaiiied
of the delays and difliculties attending the settlement of this question
chargeable upon the conduct of Great Britain, and mainly occasioned
by the fact that (ireat 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-
nnitic controversy on thei)art of a power liice Great Britain — and 1 can
easily see that there are very serious difficulties attending such a settle-
ment— another i)ower iinding 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 lie had again referred to the period when Mr. Phelps communicated
his original proi)osition to Lord Salisbury, which was promptly accepted
by Lord Salisbury under circumstances which led the Government of
the United States to sujjiiose that the final determination of the con-
troversy was at hand. lie had referred to the fact that the negotia-
tions were first interrupted, then suspended for a long time, then finally
retired from in conse<iuenceof the a(;tion of the Canadian Government.
Lord Salisbury undertook to defend the British Government from those
charges. This is the rejily 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 suc<!eeded in drawing Mr. Blaine into a con-
troversy respecting tliese Bussian pretensions and the etlect of the
Treaties of 1824 and 1825 resi)e(;ting them, and having received Mr.
Blaine's argument upon that point, replies to it at great length. The
reply coinineiuies on page 242 and extends with its notes to i>age 2(53.
Of course it is wholly in»j)ra('ticable to read it here, and all I can do,
and all it is necessary to do, is to briefly sununari/e it.
Lord Salisbury's argument is this: that the i)ublication of the ukase
of 1821 was the first notice wiiich Great Britain had ever received, or
other Governments had ever received, of any i)retensions by Bussia
over the waters of liering Sea and over 'he Ncnthwest Coast. He
states that the pretentions of Bussia made by that ukase were to a
sovereignty over the waters from Bering Stiaits down to latitude ol
on the American shore, and down to latitude 47° on the Asiatic shore,
tiius ass<'rtinga sovereignty, not only over IJering Sea, but over a large
])art of the ocean south of that sea: and he insists that the principal
^oiut of the objection of Great Britain to this pretention ou the part of
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
GO
bte, and is
ave hereto-
louklers of
)(!cuire(l in
etween Mr.
itter either,
jntion'?
beginning.
Sir Jnliau
com plained
lis question
' occasioned
her action
liatever may
t of a diplo-
i— and i can
iuch a settle-
which it is
)r supposed,
; uneasiness :
u his letter;
immunicated
[)tly accepted
vernmout of
of the cou-
th e negotia-
then finally
overnment.
from those
)w that that
jmplaiuts of
ican Appen-
le intoacou-
ene«'t of the
•eceived Mr.
ength. The
to page 2()3.
ill 1 can do,
of the ukase
received, or
s by Kussiu
Coast. H«'
,se were to a
latitude 51
siatic shore,
over a large
,he principiil
u the part of
Russia was, not the matter of sovereignty on the Northwest Coas
whicii Mr. IJIaine conceived it to be, but the assertion of maritime
dominion over the high seas. He insists that tliat was the i)rincipal
point comi)hiincd of by Great Britain; and he says that that was
squarely abandoned by the treaty concluded between Russia and Great
liritain in 1825; that the principal assertion was one of complete
dominion over the sea, and that that assertion was abandoned by the
express tern)S of the treaty. I now read from the first article of the
treaty between Great Britain and Russia of 1S25, which is found on
page 39 of the first volume of the Ap])endix to the American Case, for
the imrpose of showing what the argument of Lord Salisbury was.
That first article is:
I. It is agreed that the respective snhjeets of tlio high Contracting PartieH shall
not bo troultled or iiiolestt'd, in any part of the ocean, conniionly ('ailed tlie Pacilic
Oeean, either in navigating the same, in lishing therein, or in landing at sneh parts
of the coast as shall not have been already o(;cni)ied, in onlcr to trade with tho
natives, under the restric^tious and conditions speeilied in the following articles.
Mr. Blaine's argument Inul beeii that the words " Pac'lic 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 (lii>h)matists, now became substantially
confined to that particular ])oint, whether the term "Pacific Ocean", as
used in the first article of the treaty between Russia and Great Britain,
and the sirnilar 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 Jiussia came finally to concentrate itself very much
upon that parti<'ular 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 PuESiDENT. 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 ofticial character. Tiiere is a certain
dift'erence which I remark in the French text and in the English text, or
in theEnglish 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 whjch we must accept
in our discussions. At this point, unless the learned ['resident thinks
there is something particularly material about it, 1 will not discuss it.
The President. Your translation bears only on the ocean commonly
called the Pacific Ocean. 1 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 1 will say some-
thing upon that point; but 1 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 2(»3. He re iterated his ])osi-
tions there in a very long letter, a letter written with very great ability
sustaining his contenticm that the term "Pacific Ocean "did not include
the Bering Sea. At this time Mr. Blaiiu^ gradually becoming more
and more interested in this discussion, and giving, I suppose, nu)re 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-
wni
70
ORAL ARGUMKNT OP .TAMES f!. CARTER, ESQ.
trovftray upon this. ITe was not very cautions in that particular, and
allowed an exi)iession to fall Ironi him which the (jnickiicss of my
learned friend Sir Charles liiissell seized upon tiie otiier day. It is
dated tlie 17th of ])eeeiid)er, 18*.H), and in it he says this:
Sir CiiAiiLES KussELL. Are you goinf«- to read this at length?
Mr. Carter. No, I am not.
Sir CiiAiiLics Russell. If so, it will 1m^ necessary to read the others.
i\Ir. Carter. Oh no: far from it. I am only going to read a few
lines. This is the passage to wliich I designed to call the attention of
the arbitrators :
If (iroiit Hritiiiii ciin maintain her ])ositi()n tliat the Bcliring Sea at tlie time of tlio
treaties with Russia of 1821 and ISlT) was incliKh'd in tlio Facilic Ocean, tiie (iovern-
inent of the United states has nt> well-f^ronuded coniplaint ajfainst lier. If, on the
otlier liai.d, this (jlov('rnin<uit can prr)ve tieyond all doiiht; tliat the IJehrinf; ISea, at
the date, of the treaties, was understood liy th(i tliree sij^natory Powers to he a. sei)a-
rute body of water, and was not inelnded in the plirase " I'acilit! (Jeean," then the
American Case against Great Britain is complete aud undeniable.
The extraordinary thing in that observation and what I desire to
call to the attention of the learned Arbitrators is this: ACr. Blaine in
his first note to Sir Julian Pauncefote stating the position whicli the
United States took in reference to this controversy and tlie grfmnds
upon which it based its claims to ]>rohibit ])elagic sealing in Bering
Sea, dismissed from consideration altogether this questi(m of Kussian
authority and Kussian ])retentions, or any right derived by the United
States from liussian authority or Kussian pretensions, lie 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-
stlves and useful to mankind — setting forth the destructive nature of
pelagic! .scaling as carried on by these Canadian sealers and its inde-
fensibility upon moral grounds, that it was an indisputable wrong, and,
being injurious to property interests of the United States, that the
latter power was clothed with full authority to prevent the commission
of that wrong. Those were his grounds. Here, .somewhat incautiously,
he has abandoned that view, and chooses to say now that if the Gov-
ernment of Great Britain can maintain its i)0siti()n in re.s])ect 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 >[oR(}AN. I hope you will. On the liOth day of April 1890,
preceding by several months this letter from wliich you have been
reading, written by Mr. Blaine, the British Government, thnmgh Sir
Julian Pauncefote, sent to Mr. Blaine a draft convention, from which 1
will read the preamble:
The Gos-ernineiit of Russia and of tiie United States havinjjf represented to thr
Government of (J rent Britain the urjj;ency of r(!,uii latin jz; by means of an in tenia tioniii
a|;reeiiient the fur-seal tishery in Hchiiiifj; sea, tli(4 sea ol' Okhotsk and the adjoiiiini;
water,s for the preservation of tiie fur-seal species in tlio North J'acfitie Ocean.
Making a distiiu'.tion therebetween Bering Sea and the Sea of Okhotsk
and Nirt'th Pacific; Ocean. I will not read tlie whole iireamble, but ii
seems to nie that Mr. Blaine had at the time he wrote the letter upon
which you are (M)mmenting an acknowledgment from the British Gov
eminent that there was a distinction between the Bering Sea and the
Sea of Okhotsk aud the North Pacific Ocean; but I tUiuk he was not
■i
ORAI, ARGUMENT OF JAMES C. CARTER, ESQ.
71
pttlsir, ail (I
'ss of my
lay. It is
;tli?
the others,
t'iul a few
ttentiou of
e time of tlio
, tlic (lovcrn-
r. 11', on tho
liriiij; Sea, at
to be ii sopa-
an," then tho
I desire to
. Blaine in
which the
he {jrouuds
r ill Bering-
of llussiau
the United
o then pro-
j.ht, setting
;d on by the
iul to them-
\-e natnre of
nd its inde-
wrong, and,
es, that the
commission
iieavitiously,
if the Gov-
|si)cct to the
las no well
literrupt you
April 1800,
hiive been
Ithnmgh Sir
Ironi which I
lesiMited to tin'
111 iiitcrnatioual
the. ad.joiniiij;
Ocean.
la of Okhotsk
]n»ble, but it
letter upon
British Gov
ISea and the
he was not
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
years.
Mr. Carter. It may be that the British Government had acknowl-
edged the ditference 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 otier a criticism — I ought, ])erhni)s, not to — but nevertheless
it seems to me it was — a piece of imprudence in INIr. Blaine to abiindon
the ground which ho at lirst assumed, in consequence of tlie confidence
which he felt in the new position he was taking upon this question of
the pretensions to Bering Sea. He might have sirgued the question of
the rights of the United States as acqnired from Kussia. 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 280, Mr. Blaine thus wiites:
The repe.ated assertions that tho Government of tho United States demands tliat
the Mehriug Sea be pronounced viare clanmiin, are wiMiout foundation. Tlie (iov(!rn-
ment lias never claimed it and never desired it. It expressly disavows it. At tlio
same tin\e the United (States does not hutk abundant anMiority, accordini; to tho
ablest exponents of international law, for holdiii<r a small section of the lieliring
Sea for tho protection of the fur seals. Controlling a comi)aratively restri<'ted area
of water for that one specilic purpose is by no means the equivalent of declaring
the sea, or any part thereof, mare daimim. 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 interlerence with tho common law of the sea as is nmintaiued by British
authority to-day in the Indian Ocean. The President doc^s not, however, desire tho
long postponement which an examination of legal authorities from Ulpian to I'hil-
limore and Kent wouhl involve. Ho finds his own views well exjiressed by Mr.
Phelps, our late minister to England, when, after failing to sticuro a. just ariangemont
with Great Britain touching tho seal iisherieH, he wrote the following in his closing
communication to his own Government, Septeml>er 12, 1888:
"Much learning has been expended uj)ou the discussion of tho abstract question of
the right of mare claitnum. I (io not conceive it to beai>))licablo to the present case.
"Here is a valuable fishery, and a largo and, if properly managed, iiermancnt
industry, the property of tho nations on whose shores it is carric^d on. It is proposed
by the colony of aforeign nation, in doliancf! of the joint reiiKuistranco of all tin? coun-
tries interested, to destroy this Imsiuess by the indiscriminate slaughter iind exter-
mination of the animals in (|uestion, in tho open neigliboiing sea, during the period
of gestation, when tho coinmon dictiittss of hum.inity ouglit to protect them, were
there no interest at all involved. And it is suggested that wo are pievent(!(l from
«lefending ourselves iigainst such deiiredations because the sea at a certain distance
from the coast is free.
"Tho same line of argument would take under its protection piracy and tho slave
trade when prosecuted in tho open sea, or would .justify one nation in destroying tho
commerce of anotber by ])lacing dangerous obstractioiis ami derelicts in tho open sea
near its coasts. There are many things that can not be allowed to bo done cm the
open sea with impunity, and against which every sea is mare chimiim; and the right
<>f 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 prolit to those eugaged in it, would Canada, upon the just
principles oF intoruaticmal hiw, be held defenseless in such a case? Yet that process
would be no more deatructive, inliuman, and wanton than this.
"If i)recedents are wanting for a defense so necessary and so proper, it is because
precedents for siu^h a course of conduct are likewise unknown. The best international
law has arisen from i)recedents that have been established when the .just occasion
for them arose, undeterred by the discussion of abstract and ina(le(|nate rules."
I have the honor to be, sir, with the highest consideration, your obedient servant,
James G. Blaine.
i
72
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Tlic, loariied Arl)itrjitor.s will there perceive tliiit I\h'. Blaine coniea
back to his orifriiial ftrouiid and puts the case ui)oii the (|nestioii of
propcrU/, and of essential rifflit, and of a right to defend proi)erty
interests on the high seas against acts which are themselves contra bonos
mores. 1 am ohliged 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-(M)ntradictory ; but it is, nevertheless, true tiiat,
inasmuch as the last attitude is taken at the end of his letter, theposi-
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. Tie rejoined to Mr.
Blaine in a letter dated February 21, 1891.
Sir (JirAR],ES Kusskll. That'iscom[)aratively short.
Mr. Carter. Comi)aratively short, but not short enough for me to
read it. Xor is it necessary for me to describe it, or to say anything
of it, except that it was a reiteration of his original positions and a
respectful statement that the argument of Mr. Blaine on the other side
was not satisfactory; closing, I believe, as is usual, with these polite
gentlemen, Avith some (ionciiiatory observations, and also containing
some discussion of the jioints of the proposed arbitration; for the arbi-
trators will remember tiuit while this discussion upon the merits of the
controversy was going on, another discus.sion was also going on between
the parties, ptiri pthssx, concerning the features of the arbitration,
towards which the corresimndence 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 cojitroversy any
special new feature whi(;h it is iinportant forme to bring to your atten-
tion at this time. The debate was exhausted; the disputants had
state<l tlu'ir view.s, 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 fippaient to each party, and approaches a\ ere gradually
made to a final agreement for an arbitration. Much discussion took
place in reference to the i)oints which should be submitted; but there
was not very great ditticulty exi)erienced 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 alteriuitive
features, one contemplating that there should be a mixed commission
of experts which should make incjuiries 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 reimrt should find themselves able to agree upon a
scheme of regulations, the arbitration would become unnecessary.
That was not expressed, but it was an imjdied feature all along. It was
borrowed from tlie original suggestion of Sir Julian Pauncefote. But
if there was a failure to agree, then, of course, it would be necessary
that the arbitration vshould proceed, and when it did proceed, it was to
embrace all the questions in relation to the original pretensions of
Bussia, and to the rights which the United States may have derived
from liussia 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
Pi'ibiluf Islands; and then, if the determination of the Tribunal upon
ORAL ARGUMENT OF J A:\IES C. CARTER, ESQ.
78
line coinea
uestiou of
I property
mtra bonos
en by Mr.
lie end, are
true til at,
r, tliepo.si-
tliis letter,
iiy respeet
ined to Mr.
for me to
Y anything
ions and a
! other side
hese polite
containing
or the arbi-
eritsof the
on between
irbitration,
i gradually
this, but it
•oversy nny
youratteu-
itants had
nent at all
some mode
lit became
gradually
ssion took
but there
igreement.
rersy con-
it is nec-
led upon it
Alternative
pmmission
ll life and
preserve
Mits upon
|e upon a
jiecessary.
It was
lote. But
necessary
it was to
fusions of
derived
kestion of
id in the
(upon the
lual upon
those questions which are properly Ciillcd by my learned friend Sir
Charles "(luestions of right'', should leave the subject in a tondition
where the concnrrcnce of Great Britain was necessary to the establish-
ment of regulations f<)r the ])reservati()n of the fur-seal, the arbitrators
should consider what regulations were necessary.
The Pkesidknt. In that contingency?
Mr. CAKTiiii. In that "contingency", yes; and only in that contin-
gency. The duty of the arbitrators is most plainly specified here as to
what they arc to do, and the times at which they are to do it. The
(juestion 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 i)arties were brouglit to a substantial agreement upon
these points, the agreement for the arbitration and the agreement lor
the mixed ccmimission of experts, were drawn uj) separately and signed
separately on the ISth 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 iinally drawn up and signed;
but in February, 181»li, these two agreements, thus far kept sei)arate, were
finally consolidated in the treaty, and the treaty was signed and ratified.
That concludes the second Nia<io of the controversy.
In a word or two, allow me to recapitulate the princi|>al features of this
second stage of the controversy. It opens with the acts of the admin-
istration of I'lesident Harrison; proclamations designed to inohibit
pelagic sealing, instructions to cruisers to enforce the law; seizure of
B.ritish vessels and conseipient renewal of protests by Great Britain.
Next the consideration by I'resident Harrison and his Secretary of
State, Mr. Blaine, of the grounds upon which the United States
defended their action in making these seizures upon Bering Sea, and
the setting forth of those grounds in their full extent. The next step
in this stage was a renewal of the negotiation for a settlement between
the two Governments, the proposal by Sir Julian of a draft convention,
which contained the germ of a qualified and limited arbitration; next
the answer of Lord Salisbury to the argunients upon which Mr. lilaine
had defended the conduct of the United States, and an attempt by
him, as I have styled it, — perhaps that will not be agreed to by my
learned friends on the other side — but an attempt, as I think, to avoid
a discussion of the grounds up(m which Mr. Blaine had undertaken to
defend the position of the United States; next the introduction of this
mattter of Kiissian pretensions in Bering Sea; the Ukase of 1821; the
treaties of 18U4 ami ISlTj; and the question of what was meant by, an<l
how much was included by, the jduase "Pacific Ocean", as it is used in
both those treaties, ^'ext tlie carrying forward of the proposal for arbi-
tration and the reduction of the suggestion of a joint commission to
distinct ])oints, 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 net ion of the two Governments vndcr the treaty. 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 —
11
1
74
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
went ovor to tli(5 Hoaliiif;' isliiiids of I'lissia on tlio Asiatic aliore, and
they examined tlie business of i)ela}>ic sealinj;', its nature, its tendencies,
etc. Tlie two sets of ('oniinissioneis came to;'<'tlier; tliey attempted to
a;i:ree; but tliey found tliemselves unable to ajjree, except upon one or
two limited conclusions. They were agreed in this, that tiie numbers
of the herd of seals which made its home upon tlio Pribilof Islands
were in the course of diminution; that such diminution was cumulative,
that is, it was increasins;, and that it was in consequence of the hand
of man. There they st(t|>i)ed, and were unsible to go any further.
What the causes were which la-evented them from beinji' able to ffoany
further in harmony are to my mind very jdain, but this is not the
moment at which 1 should state that. It is enou{{i» for the i)resent pur-
pose to say that upon all other matt^'rs they disagreed, and therefore
the hopes of the two (iovernments of being able to unite in a conven-
tion in resi)e(tt to regulations based upon an agreeing joint report of
these commissioners, were disappointed, and it became necessary that
the Arbitrators should be called together. Thisdisappointment of hopes
occurred a considerable period before the time wlien any step was
requisite in referen<'e 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 (Jounter (Jases and to exchange
them, and to prepare their arguments for submission to the Tribunal;
and here we are.
That, gentlemen, is, as well as I can state it, a concise account, although
it has been a rather long one, of the various stages of this controversy,
and I hope it will have tended in some degree to enable you to view
the controversy in tiie lights in which, from time to time, the parties
themselves have viewed it; and, tiierefore, to understand the precise
questions which arise, the precise dilliculties which are presented, better
than you otherwise would,
I shall, therefore, i>roceed with the next stei) in the argument of the
Case.
Senator MouaAN. Mr. Carter, before you proceed, will you allow me
to call your attention to some dates about which, possibly, there is some
misunderstanding. I understand that these commissioners were in fact
appointed belbre any convention was signed.
Mr. Cautek. Yes.
Senator ^^<)I{GAN. They entered upon their work and completed it
so far as the investigation was com-erned, before any convention was
signed ; and when they made tiieii- 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 an imi)ortant fact. 1 know it is a fact because the record shows it.
Mr. Foster. Tiiey adjourned on the 4th of March, and the conven-
tion was ratified by the Senate on the 20th of March.
Senator Morgan. Tlie Commissioners completed their labors making
their joint report and a sejjarate rei)ort to each Government before the
Senate of the United States acted upon that convention, and before
ratifications were exciianged.
Mr. Carter. I believe that to be so, but I have not the dates.
ORAL ARGrMKXT OF JAMES C. CARTER, ESQ.
75
Sctifitor MourtAN. Thert'foro, tliero was no treaty at the tiino tbcy
inaiU' tliat reiiort.
Tlie PuKSinKNT. But tiiere was an ananHvinont between tlie Gov-
eniiiieiits — precisely the arranfi'enieiit whieh w;is signed afterwanls, on
tlie ISth of I )e('eml)er, 18J)1. There was an arranj-enient made in .Mine,
JH1>1, if I rt iiember, wlii(!li you read us a few days affo, an arranfjeinent
in seven arti(des, providing for the Joint coininission to be sent out. That
was not sijjned but it was an arranji'enient between the(iovernnients.
It was not sijjued or ratihed, since it had not been subnntted to the
Anieriean Senate.
Senator MoitoAN. Tiie i*resi(b'nt does nut seem to api)rehend exaotly
that no arrnngeiiieiit iiiatb^ between tlu>, (\< lounitie functionaries of the
United States and any other (lovernment of the character mentioned
here, has any etVect whatsoever upon tlu^ laws of the United States
until it has been ratilied by the Senate; and the ratitication took pla(;e
not only after the arraufjement was made, but after the rej)ort was made.
The President. The 7th of .May, 1892.
Mr. Justice IlARiiAN. The separate report of the British Commis-
sioners was made -lune 1st, 1892, and the exchange of ratifications
occurred ]May 7tli, bS'.L'.
Senator MoudAN. I refer to the Joint report, after whicli, as I under-
stand it, tli(^ (Jommission, as a Commission, was dissolved. And each
of the Coni.Miissioners went on,wiietlier rightfully or wrongfully, I am
not prepared to say, to make subseiiuent thereto, their separate reports
to their respective (lovernments.
The Presiden'I'. That is perfectly correct
Mr. Carter. The statement by the learned Arbitrator is entirely
correct.
Senator MoRfiAN. The Commission linally adjourned on the 4th of
March. The rati(l(!ation of the treaty was had on April LJd.
Mr. Justice Harlan. The ratitication?
Senator Moroan. The ratitication by the Senate.
Mr. Foster. It was proclaimed JNIay 9th.
Mr. Carter (reading). "Concluded" at Washington, February 29tli,
1892; ratitication advised by the Senate, March 29th, 1892; ratified by
the President, April 22d, lSi>2; ratifications exchanged, May 7th, 1892;
l)roclaimed, iMay 9th, 1892". That is on the lirst page of volume 1 of
the Appendix.
Senator MoitriAN. It was proclaimed by the United States as an
amended treaty, putting the treaty as originally ratified by the Senate
and the inodKs vircudi which came in as a supplementary "treaty or an
amendment of a former treaty together, and constituting one instru-
ment to be construed in pdri materia.
The President. Tiiat had no legal force, I suppose, before it was
proclaimed in the United StatCvS.
Mr. Carter. None at all. It could not have had, either in Great
Britain or the United States.
Mr. Phelps. Tiiere were also other amendments added by the
Senate.
Seinitor Morgan. Tiiere were two amendments of a distinct char-
acter, each to a subject not entirely foreign to, but independent of, the
modus virendi.
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.
r^^
I
70
ORAL AUOtTMENT OP .TAMKS C. CARTER, ESQ.
Mr. (-Ai.'Ti.K. ill tlic view I t!il«' of it, it inuy, or may not, bo that
tliat action was without strict aiitlioiity. Whatever tlui tnitli is, liow-
ever, this innst he true — tliat the (li|)h»niatic representatives of the
(iovernuu-nts had coine to a t'oriiial a^ieenieiit that this sliould budotiu.
They had coin(^ to an a^-reeinent also in writing that tiiis should be
(h)ne, althou;;!! that writing' was not in a I'oiiu nialvinj; it a treaty.
That is i)lain enon.'li. It was hij;liiy important that all of this ])re-
liminary worlv should be done as soon as jiossilth'. It was ne«'essary
in or(h'r to carry out tlie Hclu-me (!(»ntemplated l)y the treaty. It wan
all done l>y tlie parties in ^ood faith, and 1 sliould hope tliat it would
be allowed to be considered as haviu}'' elVect accordiii}; to the intent
of tlie parties. I should, indeed, myself b<' inclined to arfjue that tlie
ratifications havin;;' been exclian<;(Ml between the (loverninents with
full knowledfic^ that these ])roccediii};s had already been had belbre-
hand, and that it was the desij^'ii of the peiidinj; treaty that they should
be had, that the ratiliiraticms of the treaty would have an ell'ect, as we
lawyers say, by rcldtinn, and <io back and make f^ood these prior [>ro-
ceediiiji'S which otherwise mif-lit have been invalid.
Senator MoitCAiN. If the learned counsel will allow me, that is pre-
cisely the view I take of the matter, that the subsecpient ratification of
these treaties, whether there are two or whether there is one, relatinj?
to the action of the ('omniissioiicrs authorized hy that diplomatic <'orre-
spondence, is an adoption of what those Commissioneis had done; but
that operates npoii what they had done, as 1 conceive, and it did not
operate t<> aiw them any aiitluuity in futuro.
Mr. Cabtku. Oil no; I should siijipose not. lUit the view which
is suffffested by the learned Arbitrator is entirely in accordance with
my own.
1 now pass to the next matter which, as it seems to me, in the order
I have prescribed, it is proper for jiie to consider.
This also is a (piestion, somewhat jjreliminary to the .argument of
the main (juestions in (MUitroversy, but upon which it seems to me
important that L should address a few observations to the Tribunal;
and that (luestion is as to the law which is to jjovern it in its deliberations.
This is a Tribunal composed of the citizens of dilferent nations, part
belonf>ing to the nations between whom the 'controversy subsists, and
I)art coming; from other nations. Tlu'y are sitting under no municipal
law whatever. The authority of the courts of Great Britain, the
authority of the courts of the I'nited States, as authority, are as
nothiiij; here. This is an international Tribunal. Then, too, there is
no international legislature whicli 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 en<;a;j;od in a controversy before municii)al tribunals,
there is no settled law at all. Yei we cannot sujjpose that questions of
this sort are to be discussed, debated, and determined by this Tribunal,
without its beinjjf bound by some rule or some system of law. What
then is the law which is to jjovern us''? I su))pose I mij^ht appeal with
entire conlidence 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 hy some ntle of right. What that particular
rule may be, and where it is to l)c found, is another question; but the
decision is to be jjoverned by some rule of right. 1 heard with infinite
pleasure my learned friend. Sir Charles llussell, Avlien he was address-
ing- you upon one of the iireliininary questions say that the first five
questions mentioned iu the treaty were what he might properly enough
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
77
t, bo that
li is, liow-
«'s of the
1 be done,
shouhl be
ii treaty.
this ju'e-
iiecessiiry
\ It WiJS
t it would
tiie intent
1' Ihat the
ents witii
lul belbre-
ley shouhl
cet, as we
prior pro-
lat is pre-
Hcation of
', relatinfj
aticcorre-
hjiie; but
it did uot
ew which
lance with
the order
iiment of
ns to nie
[Tribunal;
)evations.
[ions, X)ai't
[sists, jvnd
nunicipal
taiu, tlie
, are as
, there is
latiou to
applie<l.
spealv of
ribuuals,
istions of
ribunal,
What
neal with
ictiou of
the con-
larticular
but the
intinite
address-
tirst five
enouglx
■%
call, he thouj-ht, qucxtionH of rif/ht, and that tliey were questions of
liylit wiiich Minst Iw. decided by the nuMubcrs of tliis Trilniiial -ah jnristn.
I concur in tiuit view of tintse (lucstions tiius taUcn by liini nnd antici-
l)ate, indeed, tliat it will lu'.ver Int receded ironi by iiiin. How else
could it be? This is called nn arhitnilion; but very plaiidy it is not
an ari)itiation of that clnuacter which very frcMiucntly takes jdace
Ix'tween man and man. Oftentimes in controversies between individ-
tnils it is of farlii^lier importance tliat the pai'tieuiar dis|)ute slioidd be
in some niannei' setlied and the parties lelt at peace, than lioir it sinill
be settled; and tlierelbre in siuii cases the decision is often reached by
some re(!ii»rocaI process (d" concession, yivinj;' a little on one side and
conceding;' a little on the other, and so on, until tinally an aj,'reement
is reached without a resort to any particular jtrinciple. That is not
the way to deal with this controversy. It is of a totally dilVereiit char-
iicter. Jl'iteoidd have been dispose<l of by nintiial compromise and
concession it would never have been broii;;lit to this Ari)itration. The
parties theins(dves could have settled it. 'I'In'y are (piite competent
to say how much they will be willinj*' to yield, in order, by nujtnal
(Hunpronnse and coui-ession, to linaliy reach a i)oint upon which they
can at^ree. But the dilliciilty in this <;ase is that the parties were in
ditl'ereiu-e in respect to their rujhts, and they could never come to an
afiieemeiit upon them. They ditl'ered as to tin,' question of the i)owers
a nation may exercise upon the hijili seas in defence of its a<lmitted
rifi'lits of i)ro])erty in time of i)eace. Tiiey ditl'ered on the (luestiou
whether the United States has a property interest in these seals, and
in the industry which has been carried on in icspect to them on the
riibilof Islands. Those ditl'erences they have never been able to recon-
cile. At variance with each other in nsspect to theni at the start,
subsequent discussion between the two parties has had the effect only
of more widely separatin}^' them; and it is tliat controversy upon those
questions of ri<;ht which vhey have connnitted to y<Mii' decision.
The constitution of this Tribunal also imports that the ([uestions are
those of rUjht. Why should a tribunal have been called toj-ether con-
stituted ot eminent jurists from several distinct nations unless it was
iidended that the rules of rUiht should be applied? Why should i»ro-
vision have been nnide for (!ounsel supi)osed to be learned in the law,
and learnetl in the fundanu'utal princijjles upon which the law is
Ibunded, unless it was supposed necessaiy to bring before the tribuind
considerations of rUiht 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 ri;iltt, a<'knowledj;'ed both by it
and the counsel wh(> address it, to which the latter could ai>peal and
upon which they could endeavor to pursuade the Tribunal 1 It is there-
fore very clear, as it seems to me, that the de(;ision of this Tribunal is
to be p,()verned by some rule sucii as we understand to be a rule of riffht.
Any other rule, I assume, would not be satisfactory to either party. It
certainly would not be satisfactory to the Uidteil States. 1 thiidi I
may safely say that, however valuable this seal herd nuiy be to the
Government and to the people of the United States, a decision atrirni-
ing their full and exclusive rijilit to it made by this Tribunal, unless it
were made ui)on firoundu of ri(/ht, would not be acceptable. It is of
far greater imi)ortance to "the United States, as it nuist be to every
nation, that the decision of any controversies to which it may be a
l)arty should be deternuned njjon ])rinciples of rii-ht, than it is to gain
any mere teuiporary ad\autaye not based upon such principles.
sj.ifc'hiani'Vf*'' 5aul
78
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Tliere is another consideration: tlie priiM'i])les whittli are involved in
the controversy alTic-t tiie most iiorniaiK'nt, enduring, and wide-spread
interests. Certainly notliin*;' can be moie important tlian a determina-
tion of tiie (piestioii of tlie power wliicli one nation may exercise sijuainst
the citizens and fit projierty of another nation n})on tlie liigh seas in
time of peace. Tliis is a (piestion — some asj)ects of it well enougli set-
tled, but other aspects of it quite novel — re(juirin,>>' additional exi>lora-
tion, additional elucidation, and ad<litional determination. It is a
(|nesti(»n of the ,t;ravest and most important character, upon which dif-
ferences of opinion may arise likely to eiidiroiJ nations in hostilities
and to break up lini peace of the world. Then, ajiain, that other (pies-
tion. the circumstances under which a nation may assert a rif/Itt of
^>rrt/K;/7// in animals that resort to the seas for a j^reat^n* or less time
durinj"' the year, and therefore an aninml which at ditlercit times may
])lace itself under the power of citizens l)eloiif?in,i>' to diffi ,'ont nations
of the earth — what question of greater importance can th<'ve be tliau
that which involves tlib i)rincii)les upon which sucli contliciiu^'" claims
nniy be resolved — the fuiidamonta. i.riuciples upon Avhich the institution
of property itself stands?
These are questions, the permanent importance of which far out-
weighs the ])articular interests of the contending parties to this contro-
versy: and I must tlierefore express the lioi)e that they will be settled
as nry learned fiiend says they ought to be settled, by this Tribunal,
looking to them as jurisrs, and feeling the res])onsibilities of Jurists.
The Judgment awaited from this Tribunal will be, or ought to be, a
nu)nument, or rather an oracle, to which present and future times may
appeal as faridshing indisputable evideiu'-e of the law of the world.
Therefore,! think myself Justilied on this occasion in appealing to
each mend)er of this Tribunal — 1 tliiidcitis not unbecoming in me to
make that ap])ea1 — to discharge and disndss from his bieast every sen-
timent of partiality, and even of patriotism, and to look ujion this
(pM!stion as if he were a citi?.en, not of this country, or of that country,
but a citizen of the jvorld, having in charge, and having oidy in charge,
the gi^neral interests of mankind. The promptings of ]tatriotism, every-
where else to be heeded, sliould be silenced heie, and nothing should
be obeyed except the voice, the supreme voice, of Justice and the law.
lint 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 irhcre is it to be
found? In saying that it is to be i' rule of right, it is assumed — it is
iiulced declared — that it nuist be a ?Ho*7<i rule; that is to say, it nuist
be a rule ado])tcd by the moral sense; for there are no rules of right
except moral rules. Ivight and vmnig have to do witli morality and
with morality alone. The law, whetlier it be international law, or
municipal law, is l)ut a i)art of the general domain of ethics. It may
not include the whole of that domain, but the centres of each system
<!oincide, although the circumference of one nniy extend beyond the
boundaries of the other.
When 1 say t hat the rule must be a moral rule, that is to say, a rule
dictated by the moral sense, I do not mean, f»f course, that it is the
nn)ral sense of any individual man. or of any individual nation, because
there are dillcrcnccs in the moial convictions of dilfcrent Uicn and of
dilferent naliiuis. It is a coiitroveisy between nations, AVe cannot
a])ply to it the nn)ral standard, either of one, or of the other, or of any
])articular nation. Where, then, can we titid it ? 1 subnnt to you that
we v.iust lind the rule in that ficiicntl tiiontl nitdKlanl upon which all
civilized nations, and the ueoplc of all civilized nations, are agreed.
)RAL AKGl.'MENT OF JAMES C. CAUTER, ESQ.
79
volved in
ilc-spicad
etcniiiiia-
se aji'aiiist
:U seas in
longh set-
1 cxi)Ioia-
. It is a
whicli dif-
liostilities
ther (lues-
a ri(/kt of
less time
billies may
it nations
e be than
11^.: claims
nstitntion
h far out-
lis contro-
be settled
Tiibniial,
of Jurists,
it to lie, a
times may
world,
pealing to
tf in me to
every sen-
upon this
t country,
in charge,
sin, every-
ng should
1 the law.
etermina-
lis it to be
:ned — it is
, it must
;s of riglit
ality and
1 law, or
It may
h system
kond the
|ay, a rule
it is tlie
|i, because
Ml and of
je cannot
(or of any
you that
h'hicli all
agreed.
We cannot take tlie (i]>ini()iis of one; we cnmiot take the o])iir!ons of
another We must t;ike that stiindnid n]).>ii whicli all civilized nations
are agreed; and tlial there issiieha .staiidiud there can l)e no nKuiiieiof
doubt. This whole jnoceeding would be out of place if here were not.
I could not with any ]iroi>riety stisnd up and address an argunieiit to
this Tribunal unless there was some agreed stiindard between it and
me to whicli 1 could appeal, and npoii which I can hope to convince.
There is, therefore, an (ii/rccd stuiidtird of morality and of right, ol' Jus-
tice and of law, ngieed ujxni among all civilized nations and among the
people of all civilized nations. It is Just as it is in municii»al law.
There i^ a standard there. When controversies are brought before a
muui(;ii>al tribunal, it is most generally the case that there is no partic-
idar statutory law which goveii--. the dceisions; and it is very otteii,
and ])erhaps generally, the fact inat there is no i>iirticular])rior decision,
or ]>recedeiit, 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 oi' their function ha jvt(i('i<il c.rjxris
Avhose business it is to ascertiiin 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 nuuality and oihics as that iiarticular
society chooses to enforce upon its nicinbers. 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 ])rinciples of morality
riid ethics as the nations of the world agree shall be binding upon
them. That is international law, founded iii»on 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
Avitli 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 ad(»pt
is the (leneral tiiainUod of juniice revoijnizvd hi/ the tialioitti of the icorld,
■which 1 conceive to be only another term I'or international law.
The PiiESUJiiNT. .'Mr. Carter, if you please, we will continue to-
morrow.
Before rising 1 beg leave to state that the Tribunal intends taking a
somewhat longer recess tomorrow. It will take its recess from one
o'clo( k until two, which is an excejttion to our usual luactice.
[The Tribunal thereupon adjourned until to-morrow, April 1-i, 1893,
at 11.30 o'clo( k a. m.j
NINTH DAY, APRIL 14^", 1893.
jThe Tribniuil met pursuant to adjouriuneut.]
The Pkksident. Mr. Carter, if you will continue your argument we
Avill be pleased to hear you.
JNIi'. Carter. INIr. President, at the close of the sitting yesterday, I
"vvas speaking to the point of what law shall govern tlie delibeiations
and the determination of. this Tribunal, and I had, in the course of my
argument ui)on that point, undertaken to show that the rule which
shoul<l govern must be some rule of rif/lit^ and. therefore a moral rnlti,
founded upon moral considerations; not necessarily the moral rule
which governs the Juris])rudeuce of England and the United States,
even if they should liappen to (coincide, but that moral rule which is
generally recognized by the civilized nations of the world; that gene;!.!
standard of justice — that international standard of justice — which is
universally recognized, and which is only another name for interuatiou;J
law.
InternoiUmid hoc, therefore, is the rule which is to govern the delib-
erations of this Tribunal ami 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, wliat
is called the law of nature, a term very common with the writers on inter-
imtional law. It is called the law of nature, ]>artly because it is a code,
so far as it may be called a code, not derived from legislation, having
no origin in any soveicign legislature — for there is no such legislature —
not derived from huiuan institution at all, but founded in the nature of
man and in the environment in which he is placed. It is an absolute
lu'cessity of human society, without which it could not exist, that there
should be a uioral rule by which the actions of its individual mend)ers
in relation to each otiier should be governed. This is true of all munic-
i])al states, and it is eciually true of the larger society of nations.
There could be no intercourse among nations; there could be no inter-
course between individuals of ditl'erent nations, unless there was some
rule, soiiie law, which would b(^ recognized by them and byAvhich their
transactions with each other should be governed. And in respect of
the great society o\' nations which is subject to no sovereign power,
that law or rule is, for the most i)art, what is commonly called the law of
nature. This is, indeed, the foimdation, not only of international law, but
it is the foun(hition of all law, nninicipal as well. All mnnici])al codes
are but attemiitson the i)artof particular societies of men to draw pre-
cepts and rules Irom the law of nature, and re-enact them for the guid-
ance of its individual nuMubers; and in those countries which are not
gov(\rn<'d wholly by codes ov by statutory enactments; in those coun-
tries like England and America, where the great body of juris|U'uden(;e
is unwritten, still the decisions of tin- tribunals whi(^h constitute the
sources and the evidence from which the law is ascertained, are derived
in great part from the law of nature.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
81
iimcnt we
sterday, I
iboratioiis
ivse of my
■ule wliirli
nonil rule,
noral lulo
ed States,
e which is
lat f^eiif m'
—which is
teruatioiiui
\ the delib-
hat are the
\l For the
:d by,wliat
Irsoiiiuter-
t is a code,
)ii. haviiifi'
isUiture —
nature of
,11 absohite
that there
iiieiubers
all muiiic-
f nations.
le no inter-
was some
hi(!h their
respect of
n power,
he law of
il law, but
|il)al codes
drawpre-
the f^fuid-
h are not
ose coun-
(ludence
Ititute the
e derived
I must fortify what I say in this particular by a reference to some of
the hifihest authorities on the subject. 1 shall read a (luotation trom
tlio celebrated disiiuisition of Sir James Macintosh on the Law of
Mature and Nations. IJe says:
The science wliicli Icaclies the ritjhts and dntics of men and of states has in modern
times lieen styled "the J^aw of Nature and Nations." UndiT tiiis e()in)ii<diensivo
title are included thernles of morality, lis they prescribe tin; (■on<lnft of private men
towards each other in all the \aiioiis relations of human life: as they reeiiiate both
the obedience of citizens to the law s, and the aiitliority of the uiaf^istrate in farniinjj;
Jaws and administering {Governments: and as I hey modify the intercourse of inde-
pvndeiit commonwealths in i>eace and ]>rescrilie limits to their hostility in war.
This important science c(ini]Hehends only that jiart oJ private ethics which is capable
of beinj^ reduced to fixed ami {icnoral rules.
He thus points out the law of ntiture as the source of all limiiau
jurisprudence, whether rnuniciipal or international; and Lord Bacon
liad 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 <lo take tinctures and tastes from tl ■ soils
througli which they run, so <lo civil laws vary aecordinij; to the regions and goveru-
luents whei'e they are planted, tIioiii;h they proceed from the same tbmitain.
This law of nat'ue, as it is styled, is sometimes desi^unatcd by dilfer-
ent terms. Sometimes as natural law; sometimes as natural justice:
sometimes as the dictates of rijjht loiison: but by wlu tever name it is
described, the same tiling is always intended; and if means, in short,
those rules and ]>rinci])ics of rij^ht and wiony, implanted in every
human breast and wliirli men reeojiuize in their intcrconise with each
other, because they <(rc men. havinji' a moral nature and are broui^ht
into relations with each other which conii»el the api»licati<>n of moral
S rules. 1 may cite a great authority which all 10ii;Li!isli lawyers are
I comjielled to study at the very beginning nf their instruction. That is
I lilackstone. He savs:
^ This law of nature being coeval with mnnkind, and dictated by God himself, is,
of course, sujierior in obligation to any otlier. It is binding over tln^ globe, in all
countries, and at all times; no human laws are of any validity if (ontrarv to this,
and sncli ot them as are valid ilerive all their foice and all their authority, mediately
or iiiiuiediately, from this original. (Comm. IJook 1, )>. 11.)
And the dependency of all law ui)on the law of nature is very hap-
pily and clearly illustrated by those three great maxims which consti-
tute the basis of the jurispi-udeuce of the Jvonum law, sometimes called
the Ulpiaiiic ])recepts. Tliey amount simply to a re<luction to their
simplest form of the dictates of natural justice, or of natural law, —
and they are thus familiar to every lawyer: '•Jxrifi prarepta tiuitt Ikvc:
IkhiihIv riven\ uliirmtt mm Iccderf, «»»?« vnunn trihiitrc.''''
Some writers ha\ ^* been sometimes inclined to dispute the authority
<if this law of nature, on the ground that there is no supreme jiower
capable of enloicing its precepts; they i^ay that nations are themselves
supreme; and being su])renie and *»>vereign there is no power over
them; and no i)owei'. therefoie, to enforre the dictates of this law, as
there is to enforce tiie rules of municii)ai law upon the iiulividmd meni-
l)eis of a nninicii)al state. Jbit that notion. 1 think, is a mistake, and
* has geiieially been agreed to be a mistake. It does not follow because
I tlii'ie is no suiireme authority to enforce the (bctates of this law that it
is any the' less binding. There are j>lcnty of considerations Avhich do
•'ntbice it. It is enforced, in the tiist instance, by the souse ot 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
ciifoiciiig the law. It is enforced, in the next place, by the public
« S, PT xii 0
i
t
i
m
m
""%
82
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
opinion of niaiikiiul, wliicli holds to a strict account every nation that
undertakes to depart from, or violate, its dictates; and it is enforced,
in tlie next place, by the disastrous coiisef|uen(;es which nature herself
has ordained and niad(^ certain to follow from any disobedience of her
l)recei)ts. Tiiis has been well expressed l)y a distin<>nished English
writer upon international law. I refer to Sir Kobert I'hilliniore. He
says:
It is soiiiptimessaid tli;it thor(> ciiii he iiolMwlx'twppii naiions, Locanse tliey arknowl-
cdjro no coiiiiiion superior authority, no international executive fajiablo ot enforcing
tiie ])nn'epts of international law. This oliJ«>i'tion admits of various answers: First,
it is a matter of I'ae.t that states and nations reeoj^iii/e the existence and independence
of eacli other, and out of a recoj.i;nize(l society of nations, as out of a soci(;ty of indi-
viduals, law must necessarily sprinj;'. fln^ common rules of rii^ht approved by
nations as re<;ulatin<j rlieir intercourse; are of themselves, as has been shown, such a
law. Secondly, the coutraiy ])osition (joufonnds two distinct thinj^s, namely, the
pliysical sanction which law derives from hein^ enforced i)y superior i)ower, and the
moral sanction conferred on it by the fundamental ])rineiple of rij;ht; the error is
similar iii kind to that whicih lias led jurists to divide moral oliljijations into perfect
and imperfect. All moral obli;;ations are ei|ii;!ll.\- ]ierfect, though the means of coui-
])clliiij; their ])erfornuince is, humanly s]ieal;in;;', nmre or less i)erl'e( t. as they more
or less fall under the coirni/ance of hunmn law. In like manner, iiiternational jus-
tice would not be less (les(r\ inu of that ajij)eliatiou if I he sanctions of it were wholly
incai)able of beiuf;' enlorced.
But irresjK'ctively of any such nieiins of enforccnu>nt the law must remain. God
]ias willed the society of States as He has willed tins society of individuals. The
dictates of the conscience of both may lie violated on earth, but to the national as to
the individual conscience, the lanjiuajje of a junfound ])hilosopher is applicable:
"Had it strenirth as it had ri};;ht, had it i)owi'ras it has numifest authority, it would
absolutely jfovern the w(<rld''.
liastly, it may be observed on tins head, tliat the liistory of the world, and espe-
cially of modiM'u times, has been but incuriously and un])roHtably read by him who
has not perceived tiu' certain Nemesis which overtakes the transirressors of interna-
tional Justice; for, to talce l>nt one instan<'e. what an " Iliad of woes" did the prece-
dcuit of the lirst ])artirion of Poland open to the kinfj;doms who particijjated in that
griovous infraction of iuteiiiiitional law 1 'I'he Ivouiau law nobly expresses a great
moral truth in the nntxim, ".lurisjuraudi coutemjita relif>io satis Deuui habet nlto-
reni". Tlie couunentary of a wise, aiul learned Frencii jurist upon these words is
remarkable and may not ina])tly close this lirst part of the work: "Paroles (lie says)
(jn'oii jient a])i)li(iuer ('ffaiemiuit a toute infraction dcs lois naturelles. I, a justice de
I'Auteur de ces I lis n'est |ias iiioins ariiu'^e ('(uitrecenx qui les transgresseiit quecontre
les violatenrs du serment, r|ui n'ajoutc* riiMi a Pobligation do les observer, ni 5, la
force de nos engagements, et (ini ne serf ([u'a nous r.ifquder le souvenir de cette jus-
tice inexorable." (Piiillimore's Inleniational Law, Third Eilitiou, Loudon, 1879, vol.
I, section hx.)
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
fitates, are all parts of one consistent system of univ<*rsal morality. Hetween the
most abstract and eUunentary maxims of moral philosojtliy, and the most compli-
cated controversies of ei\il and ]>iiblic law there subsists a connection. The princi-
ple of justice deeply rooted in the nature and interests of man pervades the wliole
nystem and is discoverable in every jiart of it, even to the minutest ramitication 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, mibjine.)
And Mr. Justice Story says in his book on the Contlict of Laws, Ch.
II, See. 35:
The true foundation on which the administration of international law must rest
is that the rules which aie to govern are those which arise from mutual interest and
utility, from a sense of tlii' inconveuie-nces which woulil result from a ciuitrary doc-
trine, and from a soil ( f moral necessity to do justice in order that justice may lki»
done to us in retiini.
■4.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
83
on that
jforced,
) herself
B of her
English
re. He
acknowl-
cnforiiiig
srs: First,
apeiulemo
ty of indi-
lioved by
,vn, siicb a
iniely. tlio
ur, anil the
lio error is
iito jitTfect
ins of foiii-
they more
itional ,in8-
,ere wbolly
[iiain. God
InalH. The
tional as to
applicable:
ty, it would
d, and espe-
by bim who
of in torn a-
jd tho prece-
uted in that
isses a great
babet ulto-
jse words is
|les (he says)
,a justice de
it que contra
■ver, ni h la
[de celte jus-
in, 1879, vol.
I Sir James
re already
lates, and ot
between the
liost conipli-
The priQci-
op thf whole
[lication in a
J amcs Mac-
iljaws, Oh.
|w must rest
iiit( vest and
inntrary doc-
Istice may l>*
The same g-reat authority when sittinf? as a judge iu tlie ease of La
Jeuiie Eugenie, in tlie second of JNIason's llejjorts, p. 449, says:
H'lt I think it may be nnoqiiivocnlly jiHinnpil that every doctrine that may bo
fairly dcduicil hy con-cct n'lisiiiiiiij; from tho rij^hls and duties of nations and the
mitnrc of moral o!)li;;-,iti()iis may theoreiirally lie said to exist in th(! law of nations;
and. unless it )ie relaxed or waived by tlie consent of n!iti>ins, whicli may Im; evi-
denced !iy their ijeneral ])rae1ieo and enstom, it may be enforced by a court of justice
wlieiover it arises in iiiilj^uienl.
Tlie main foundation of international law is, therefore, the law of
miture. and it is a system not evidenced by any written (sode, but is a
body of moral rules. Hut it is a body of moi al rules, at the. same time,
ns to all the particulars of which men are not absolutely agreed. There
are dilVerences in the moral convictions of ditl'erent men, and there are
diiferences in the moral convictions of the same ])eoi)le and the same
nation at diflerent periods of time. Law is a ]>rogressive system advanc-
ing step by step wit' hnman ]>rogrcss, and it is constantly asi)iring, as
it were, to reach a more comi)lete harmony with theoretical moral rules.
We cannot, therefore, in a]iplying international law apjtly those morjil
rules which we ourselves nniy deduce from our stnd\' of moral precepts.
Others nuiy not agree Avitli us; but still there is a great body of plain
and simple moral rules to Avhich all men, and all nations, may safely be
piesumed to agree, and to that extent we may enforce them. It is,
nevertheless, true that in hunnin Jurispiudence the actual doctrines
which are enforced upon the indi\i(luals of a municipal state, or which
are yielded to and recognized by nations, do not always come up to the
elevated standard of the law of nature. That is a system of very high
standards, not at all times actually recognized m 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
n])on, — is the rules so lar as th(\v are actually recognized.
That truth has been rather strikingly illustrated in the case of the
slave trade. Very few enlightened men could be found who would not
say that the slave trade was essentially and absolutely wrong. Very
few could be found who would not say that it was al'solutely contrary
to the law of nature; but is it against human law? Eew of the nations
of the world had, until recently, so far recognized the pure and true
l)rincii)les of natural law as to carry them out to the consecpience of
Ibrbidding the slave trade. That question has arisen judicially before
several tribunals. It arose in the Snpreme Court of the United States,
and called for the consideiation of Chief Justice .Marshall. The cpu's-
tion was whether the Supreme Court of the Cnited States ct.iUl execute
a municipal law, which (lechned the slave trade to be pn acy, as against
ihe citizens of another nation. He held that the slave trade was
undoubtedly against the law of natur<', but at the sanu> time, taking
into consideration the extent to which the nations of the earth had
been addicted to the |)ractice, he said it was imjtossible to declare that
it was against the law of judious; and he, tlierefore. held tii.it a munic-
ipal law of the Inited States declaring the slave trade to be ]»iracy
could not be executed against the citizens of another nation. A similar
decision upon similar grounds was made by a distinguished I'^iiglish
;n(lge, e(|ually illustrious. [ refer to L(U'<1 Stowell.
Wheie. then, are we to hH)k for the evideiu'c which is to eiud)le us to
ascertain what the law of nations is in any ]»articidar case? l-'irst. let
nie say, to the actual juactice and usages of nations; for the practice
an<l usages tif uafions must evidence the ])oints ui)(Mi vhieh they are
agreed; and where the practice and usages of nations speak we need
m!l.
i'.ifJ
li.'i
m
I!
li It
84
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
look no further. Buo the practice and usages of nations speak in bul
a coinpaiatively few cases. They really cover but a very small i)art oi
the questions which arise, and of the still larj>er number of questions
which, by possibility, nuiy arise, and which at sometime or other cer
taiidy will arise, in the intercourse of nations. In the municipal law oj
states the case is otherwise. Particular states have a regular establish
ment of courts. They employ a regular body of experts <!alled judges.
The controversies between man and man are innununable, and they
have been arising for thousands of years. Therefore, the science ol
justice and the law of nature, .so far as it is api)licable to the relations
between individual men, have been so assiduously cultivated in nuinic-
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 iu which nations
come into connection with each other, or into collision with eacli other,
are comparatively few, and therefore the occasions for the study, the
developnu'iit and the application of the law of nations have, in the
course of history, been comparatively few. For the most part, there-
lore, when new questions arise we are referred at oiu!e to the law ol
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 ]>lain deductions of right reas(»n from admitted principles,
uidess we iind that those i)lain <le(luctions have, somewhere or soinehow,
been disavowe<l by the nations of the earth iu their actual intercourse
with each other.
1 desii'e to read one or two nu)re extracts from writers of eminence
uj)ou interiuitional law, in corroboration of the views which 1 have just
expressed. 1 read a i)assiige from Mr. Pomeroy, a distinguished AnuT-
ican writer, once the liead of llu3 law scliool of the University of Cali-
fornia. Ho says (Lectures on International Law, ed. 1680, ch. 1):
Sicc. 2!). — (3) What is ciilled iiitornationitl law in its general sense, I wonld term
international morality. It ('onsi.stH of tliose rnh's founded n)K)n Jnstice and enuity,
and dediK'cd by right reason, iiccording to wliidi indciu'iident states arc aeenstonied
to regnlato tlndr nuttnal intercourse, and to which they conform their mntnal rela-
tions. These rules have no l)inding force in themselves as law; but states are more
and more ini|)elled to ol)aerve them by a defen-nce to the general jniblic ojiinion of
Christendom, by 'i conviction that they are rigiit in tiiemselves, or at le.nst exi)edi(mt,
or by fear of ]>rovoking h«>stilities. This moral sanction is so strong and is so cou-
stantl\ inere.'ising in iis )»o\ver and ettect, that we may with itropriety say these
rnles <'reate rights .md corres|ionding duties wliich belong to and devt)lve upon inde-
pendent states in their cory>orate political capacities.
Skc. 'SO. — We tlius reach the conclusion that a large portion of international law
is rather a branch of etliics than of ]>ositive human jnris]irnilence. This fact, bow-
ever. !*flord.s no ground for the Jurist or the student of jnris]irndence to negleci the
science. linieeH. tlutre m the greater advantage in its study. Its rules are bastid
H))oni abstract Justiow; ithey are in cunformit.s with the ibulnctions of right reason;
having no positive i)uniHn sanction tliey appeal to a higher sanction than do the i)re-
ceji-ts of niunicipai ''odes. All these featuns clothe them with a nobler character
than that oi the (irdinury civil jniispradence, as (iod's law is more perfect thai^
human h^gislatiou.
Tiie obser\ irmus of Mr. Pomeroy that these rules have no binding
force in tlient.Ht^lvcs as hnv is not a very correct statement. In my view
they have m themst'lves a binding etfect as law at all times and all
])laces: atwd as 3Ir. Justice Blackstoue .says, greater in one sense, at
least, tiiian any human law. This view was taken by the Government
of <iieut Hritain in a celebrate<l paper, drawn up, 1 think, by Lord
Mainhkisield himself, which was a respon.se to a memorial by tlie IMussian
Goveriimeut, a paper which was i)ronounced by Montescpiiea to be
^0i^n^^^^^
ORAL ARGUMENT OF JAMES C. CARTER, ES(J.
85
: in bul
I ])avt 01
uestions
her cer-
al law ())
stiiblish
I jutlf^es.
iiid they
iiience ol
relations
II nmuic-
ains still
1 nations
,c.h other,
tudy, the
e, in the
irt, there-
he law ol
iin of the
d to take
)rineii)les,
somehow,
itereourse
eminence
. have just
hed Amer-
:y of Cali-
.1):
would term
ami eiiiiity,
nccustomiid
liuituiil rcla-
Itfs arn iiioro
oiiiiiiou of
|t oxpiHlient,
d is 8o cou-
y Hiiy these
upon iiidt'.-
Iiatioual law
Is fact, how-
lne<j;lect the
U are based
light reason;
do the pre-
■ 1 chaiiK'ter
terfect thau
|o binding
my view
}s and all
sense, at
l)vernmeut
1, by Lord
Prussian
liea to be
I
rvpomc sans rrph'qnc, and has been generally recognized aa a very jnst
statement. I am reading now IVom the IL'tli page of my argument:
The law of nations la said to he founded upon Jiistifio, cMiuity, convenience, and
the reaHon of the thing and confirmed by long u.sajje.
And Chajicellor Kent has spoken to the same point with great clear-
ness (Comm., part I, lect. 1, p. 2-i):
The most tiBcful and practical part of the law of nations is, no donht, instituted or
positive law, foiiiidtn on nsage, consent, and aj^reonicnt. 15iit it would b(! improper
to Hcjiarate this law entirely from natural jurisprudence and not to consider it as
deriving much of its forte and dignity from the same principl(>s of right reason, tlie
same views of tlie nature and c<mKtitiition of man, and the same sanction of divine
revelation, as those from vliicli the science of morality is deduced. Tliere is a natu-
ral and a positive; law of nations. By the former every state, in its relations with
otlier states, is hound to conduct itself with Justice, good faith, and benevolence;
and this application of the law of nature has been called by Vattel the necessary
law of nations, l)ecauso nations iire bound by the law of nature to observe it; and it
is termed by otluMs the internal law of nations, because it is obligatory upon them
in ])oint of conscience.
We onght not, therefore, to separate the science of public law from that of ethics,
nor encourage the tiaiigeious suggestion that governrnents are not so strictly bound
by the obligations of truth, justice, and humanity, in relation to otlKtr powers, as
they are in the jnanagement of their own local concerns. States or bodies politic
are'to bo considered as nu)ral pertions, having a public will, capable and free to do
right and wrong, inasmuch as they are collections of iiulividuals, each of whom car-
ries with him into the service of the community the same binding law of nu)ralit.y
and religion which ought to control his conduct in j)rivate life. Tlie law of nations
is a complex system, composed of various ingredients. It consists of general princi-
ples of right and justice, ecjuallj suitable to the government of individuals in a state
of natural equality and to the relations and conduct of nations; of a collection of
usages, customs, and opinions, the growth of civilization and commerce, and of a
code of conventional or positive law.
In the absence of these latter regulations, the intercourse and conduct of nations
are to be governed by principles fairly to be deduced from the rights and duties of
nations and the nature of moral obligation; and we have the autliority of the law-
yers of anti(niity, 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
cfjually 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. 1, Translation) :
Ho (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 cure 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 whnt is not bcaiitiful. It is the
divine or natural law; it constitutes what 1 shall call jirimitivc law.
Th s law is the only basis and the only source of international law. By going
back o it, and by carefully studying it, we nuiy succeed in retriicing the rights of
iiiitions with accuracy. Every other way leads infallibly to error, to grave, nay,
deplorable error, since its immediate result is to blind uiitioiis ainl tiicir rulers, to
lead them to misunderstand their duties, to violate them, and too often lo shed tor-
rents of human blood in Tder to uphold unju.st pretensions. 'I'lic diviiu! law is not
written, it has never been formulated in any human language, it liiis lu^ver biM-n
]>roinulgated by any legisla'or; in fact, this lias never been ]>iissible, because such
legislator, being man and iclonging to a nation, was from that very fact without
any :nitli(U-ity over other Uitltnis, and had no jiower to dictate laws to them.
Inlcrnational law is, the'efore, based njion the <livine and primitive law; it is all
derived from this source. By the aid of this single law, I firmly believti that it is
not only ])ossilde, but eve i easy, to regulate all relations thnt exist or may exist
aiiioiig the nations of the u.iiverse. This common and posit i\c law contains all the
rules of justi( e; it exists ind<pendently of all legislation, of all human insl itnf ions,
and it is one for al! uat/ions. It governs jieace and war, and traces the rights and
duties of every position. The rights which it givesareclear, positive, and absolute;
Hi
Hi
86
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
they aro of suoh a nature as to ri'cipronally limit oaeli other without ever coming
into collision or coiitriKiictioii with eiK^h other; th<'y are correlative to each other,
and are coordinated and linked witii the most ix-rtecti harmony. It can not he other-
wise, Ho who has arriinged all the ]>iiit.s of the universe in so admirahlo a, manner,
the Creator of the world, could not contradict himself.
And a learned Dutch writer, Ferguson, lias spoken very much to
the point. lie says (Manual of International Luic, 1881, vol. I, part I,
ch. J II, sec. 21):
Invostinating thus this spirit of law, we find the 'lefinition of international law
to consist in certain rulcn of conduit tiliicli reason, prompted by conacience, deduces an
consonant to justice, witit sitcli limitations and modijicationa as may lie cstal)lislied by <ien-
eral consent, to meet the exiyeucies of the present state of society as exisliny amony nations
and which modern civilized states reyard as bindiny them in their relations with one another,
with a force compo.rable in nature and deyree to that binding the conscientious person to
obey the laws of his country.
And I remember, althoujjh I have not ited here, the way in which
the same question has been rc'f^arded by tae English idiilosopher, John
Locke, illustrious all over the world, in his treatise on Civil Govern-
ment, lie had occasion to consider wiiat the law ot" nature is, and ho
defines it to be that law Avhich men would obsei've 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 tliat, 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 conse(juence was they enforced it themselves. If the
rights of a man living in such a condition were violated, he asserted
his rights and defended himself by his own arm. That might be said
to be the employment of force and to be held divorced froni right;
but not quite so. The man who has justice on his side always has a
supreme advantage, and, therefore, if tliere 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 i)art of the eiiforceuient of tliat sort of justice still
remains among men, notwithstanding the societies into which they have
entered. The right of self-defence is an instance. If I am attacked
by a man I have a right to defend myself, and I do so. If a man
intrudes upon my property I have a right by my own arm, without
appealing to any tribunal, to thrust him off it, and I do so. Those are
the same modes of enforcing justice and protecting rights which mon
would exercise if there were no governments at all. iMr. Locke then
deals with the suggestion, which, he says, will be made, that this state
of nature is a mere imagination which never has existed, and never
is likely to exist, and that conse(]uently 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
l)rinces, 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 wliich enables
us to determine in any given case what the rights of nations are as
between each other in respect to jiroiieity, or in respect to any other
relation which nmy be drawn in question, a. law which "though not
written upon tables of stone, or ])roniulgated amid the tliunders of
Sinai, is nevertheless binding upon the conduct and conscieuces of
nations and of men."
ORAL ARGUMENT OF .lAMKS C. CARTER, ESQ.
87
ver coming
Pivcli other,
ot l)(! otlier-
li a inuniier,
' much to
I, part I,
liitioiial law
e, deduces an
shed bji (itn-
nonij nations
one another,
ua person to
J in which
)her, John
il Govern-
is, and he
upon each
inian gov-
Eind anter-
her a hiw.
it against
!s. If the
B asserted
ht be said
'oni right;
ays has a
authority
iglibor he
it himself,
stiee still
they have
attacked
If a man
, without
Those are
rhieh ni<in
ocke then
this state
md never
liat rights
ould have
r that all
been, and
ler M'ay of
d have if
ely, show,
h enables
ns are as
any other
oiigh not
unders of
jieuces of
r»
When we look to the more particular sources I'rom whicli wo arc to
derive knowledge of that law, I tliink tiiey are these: First, tiie actual
practice and usages of nations; and t'-ase arc^ to be learned from his-
tory, in tlie modes in which the relations and intercourse of nations
witli one another are conducted, in the acts coniinonly done by them
without objection from other nations, in the treaties which they nnike
with each other— although these sjiouhl be considered with some
degree of caution, for they are soinetinms exacted by a more |»owerful
from a weaker luition, and do not always contain the elements of Jus-
tice. And this practice and these iisiiges are also to be found in the
diplomatic correspondence between nations, wliich assort principles
on one side that meet with acquiescence on the otlier.
Another source from whicli we may ascertain the actual i)racti<!e and
usages of nations is from the judgments of tliose conits which ])ro-
fess to administer the laws of nations, — such as i)rize tribunals, whi(^h
are sometimes called international tiibunals, altliough, stricitly 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, tlie dictates of right reason, or
what is best termed, perhaps, the law of nature.
Let me call attention to one most useful source to which we may look
for ascertaining what the law of nature is, and which is not so com-
monly pointed out, I tliink, by writers. I mean the numicipallaw. If
we want to know what the law of nature is upon any given subject, the
municipal law is a prime source of infortnation; and it is so because
municipal law is founded upon the law of nature, and has been culti-
vated in every civilized state, as I have endeavored to point out, most
assiduously for a thousand years by learned exi)erts, either Juriscon-
sults, or Judges. The elibrts of sucli 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 nat ure.
We know what rules are prescribed by the Lav 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 eacjh 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 difJerence
of opinion; and from what has already fallen Irom some of them, I
anticipate a comturrence.
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 diiferences, and I sliall listen with some degree of
interest to a statement of what those ditferenccs are, and to the grounds
ui)ou which they may be based.
f
I
\\\
88
ORAL AKGUMENT OF JAMES C. CAUTKU, ESQ.
B ;
I now iippioiicli flioconsidcriitioDof tliiit (luostion wliicli, in the order
H<loi)te(l by tlicTroiity, seems projieily to be the lirsttoen/^^ijjeour atten-
tion. Tliat has releren<!e to the lifjiits \vhi<.*li may have been gained by
IJussiaover the regions in eonneetion witii whieli tliis eoiitioversy has
arisen, and tiie ri^lits whieh eonseciuently tlie IFnited States may have
derived from the act of cession of the Ahiskan territory by Russia to the
United IStiites. When I was fjivinji' a historical sketch of the origin of
tins controversy I very brielly iillnded to the rejjion of Bei'ing Sea and to
the early discoveries and acijuisitions of linssia in that quarter of the
f>iobe, but 1 onjiiit, peihaps, to call attention to some of the details
which it was not importiint for me then to give.
'J'he imiritime enterprise and ambition of Kussia, withholding its
exercise from the more fruit I'nl and agreeable quarters of the globe,
were exerted in these high northern latitudes ou the coasts of Asia ami
North America. The discoveries of Kussiau navigators in that region
began at a very early period. As early as 1(J4<S a voyage was niado
from the Arctic Ocean, from the northern shores of Siberia, around
through IJering Straits, and along the eastern coast of Siberia. That
was as early as 1(!4.S, and at about the same time there was a dis<!Overy
of the North American continent near the month of the Yukon Kiver,
on the other side of Bering Sea.
The I'lMOSiDKNT. Was not Siberia in possession of Kussia?
Mr. tJAiiTEK. So far as it could bo in the i)()ssession of any power, I
think it can be said that as early as that i)eriod it was in the possession
of Kussia. In the year 172S IJering made his voyage through the
Straits to which his name was afterwards given. He made a second
voyag(^ 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 arc the breeding place of the
liussian 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 sjjot, and enabled
them to turn that source of w'ealth to the benefit of man. During this
jieriod, and subse([uent to the voyages which I have mentioned, there
were other very numerons Russian voyages in Bering Sea .and along
the Aleutian cliain, 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
Islaruls, throMgli the passes of which they saw thera 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 Priljilof, an enter])rising Russian navigator, and he
finally, after many attempts, made the discovery.
.The Pkksident, You mean to say Pribilof's expedition was mainly
designed on account of the seals, — that he, at that period, was looking
out lor the seals?
Mr. Cart]U{. He was. lie had been looking out for the breeding
pla<'e of those seals which he had observed making these migrations to
the northward. It was a distinct object with him, and he finally satis-
fied his ambition and made the discovery.
OlfAf. ARGUMENT OF J iMEf. C CAUTKU, ESQ.
80
sbip-
lora a
liibletl
ig this
there
aloug
d that
rating
atioiis
it they
ready
, they
eutian
lourse,
I had
of the
nd he
lainly
lokiiig
Reding
)ns to
I satis-
At a later ] eii<id, Kussiiin iiavijratora also explored tlie n',yir)ii south
of the peninsula of Alaska, and down as far, certainly, as tlie."iJtlid(';:Tt'e
of latitude, and as the liussian authoritieH at the time elaiine<l, down
as far as the ol st degree of latitu<l(;; along this coast (here indicating on
the n>ap), which 1 call the Northwest Coast. When 1 sjjeaU of the
"Northwest Coast", without saying more, 1 mean that particular coast
south of the (>Oth degree of North latitude, and exten«ling down over
the whole of the liussian possessions, and of liritish 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 possil)le ui)on them. In the next i)lace, they were at
that time almost uninhabited. Scattered tribes of natives, Esquimaux,
were to be found nearly as high u^) as the llering Straits; and I suj)-
pose, also, at other places farther South. Sonu>. of the Aleutian Islands
were inhabited by native races called Aleutians, and this more soutlieru
shore and the islands were inhabited to a. still greater extent by several
different tribes of Indians. On the Siberian coast there were very few
inhabitants, I mean in its more Northern parts.
As there were no agricultural i)roducta, we may ask what other prod-
ucts were there. They were ricli in one thing, and in only one thing,
and that was fur-bearing animals. There were sea otters, seals, ami
many other animals, valuable for their skins, and at this early ])eriod,
that was substantially the oidy product of these whole regions whi(!h
was of any value to num. Subseipiently, of course, lisheries were devel-
oi)ed; but at that early ])eriod there was no ])roduct 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 puiposes? It was only by employing the instrnmentality of
the natives who were from time to time engaged in the i)ursuit of these
animals, an<l visiting them n])on frequent, or upon stated, occawsions 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
suflicient to carry the snl) jects of the commerce backwards and forwards.
It required, also, the protecting arm of the Russian Government to
defend the trading establishments thus formed. Such establishnu^nts
were principally — and the largest of them — on the islands and shore
of this Northwest Coast. Tiu're 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 ])ointer rests now (indicat-
ing on mai)), and perhaps others along that coast; but as I now remem-
ber,,! think not at that very early period. The Pribilof Islands were
not inhabited for a very considerable time after their discovery. They
were uniidiabited when found. Thepoi)ulation 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 difi'orent nations of the world, were greatly excited in
turning these various discoveries to account. There were likely to be,
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90
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
and tlicro were, as we know from history vory well, coiifli(;ting claims
arising out of an asserted priority of right; and those coiifli(!ting cUiims
were often the subjeet of disiMission iR'tween <lHf<Ment (governments.
It was necessary tliat some rule sliould 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 disciovery were subsequently abandoned, it might
go for n«)thing; but unless it was abandoned, if discovery had been
nutde, if an assertion of title had accompanied it, and an intention to
appropriate the region —
The ruEsiDKNT. And taking i)osses8ion?
Mr. (Jakter. And intcution to take ])ossession. It was not necessary
to take actuid possession, at first. That would not be [mssible in many
cases; but if the intention existed to take actual possession, and that
intention were carried out within a reasonable ]>eriod, ami not aban-
doned, the full and complete foundation of a right was laid.
How far did such a right extend? A nation discovers some part of
the Atlantic Coast of the United States. Could it claim the whole
Atlantic Coast upon the basis of that mere discovery? How great a
strip of the coast (U)cs a discovery of one particular part of it entitle
the nation which has made the discovery to claim? Could she say:
"I will coast with vessels along this shore for a thousand miles or two
thousjind miles, and claim the whole of it on the strength of that?"
That was one of the questions. Then jigain: How far iidand does the
right thus founded upon prior discovery extend? That was another
quesiljii. 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 perhai)S to the ocean on the other side of it?
Those questions were never fully settled; but there was an approach
to a settlement, and I think it was generally recognized that so much
of a coast could be claimed by a discovering nation as it was in the
power of that nation to fairly occupy.
So much for the coast. Then as to the interior. A discovering nation
was entitled to carry back her claim into the interior as far as the rivers
which emptied upon the coast to which she was entitled could be followed.
That was a sort of general rule, having some recommendations in point
of reason, which was asserted and to a certain extent recognised by
the nations at the time.
Of course, the right of a nation in respect to the extent of territory
which it could claim title to could not be limited to the mere point which
it had discovered. Great Britain asserted tiiat she had discovered the
whole Atlantic- Coast of the North American continent, from Nova
Scotia at the North, down to Fhtrida at the South. I leave out of view
now the controversy between Great liritain and Holland which affected
that portion of the coast in which New York is situated, the title of
Great Ihitain being finally vindicated to that. Hut she claimed, you
may say, the whole Atlantic Coast in virtue of the right of prior tlis-
covery. Had she nniny establishments upon that coast at an early
]»eriod? No; not half a do/en of them. That whole space, an extent of
;{,(MK) miles or more, was ass«'rletl by Great Britain to be hers in virtue
of no otiicr title than a right of first discovery, and an occupation in
half a do/eu <lill'crent j)Iac('s along the coast.
Russia, in making her discoveries of both shores of the Bering Sea,
of the islands of tiie Bering Sea, and of the Northwest Coast down to
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
91
the 54th or 50th dejjree of north latitude, claimed and asserted a sover-
eign rifjht and dominion to the wiiole of the territories tiins discovered,
founded ui>on prior discovery. SI»e foWowed up that assertion by tiio
establishment of these trading posts, one or more of them, on tlio
Ahiskan shore of Bering Sea, several of them on tiie Northwest ('oast,
soutii of the peninsula of Alaska, and more or less of them — 1 do not
know how many — upon the Siberian coast. Her title, therefore, was
based upon an undisputed prior discovery, and ujton an UM<lisputed
occupation, so far as those few establishments could give an occupation
of the whole region. Did they give a fair occui)ation of that whole
region? That is? a question whicli it is proper to consi<ler here. Was
this a reasoiuible assertion by her of dominion over that vast region?
Could she fairly claim to exclude other nations of the globe from a i)ar-
ticipation in the benefits of that discovery on the ground of her prior
discovery, and the limited occupation which she had thus n.ade? Was
that a fair and reasonable claim? Possession of everything must, of
course, corres[>ond to the nature of the thing. If a nation had discov-
ered some very fruitful i)art of the globe, — the West lmlies,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
occui)ation at one point, it might be deemed very unreasonable. Other
uati(ui8 might come in, and say: "You are not fairly imi)roving the dis-
covery you have made. Here is a coi^st capable of cultivation, capable
of extensive settlements, capable of supporting anunjerous population,
capable of enormous production. You are not ])utting it to the uses
and purposes for which nature intended it; you an; leaving it in a wild
and desolate coiulition; you are improving only a snuiU portion of it;
and yet you assume to shut out the rest of mankind from the benelits
of it on the basis of that very small and limited occupation. That is
not just or right, and you shal' -lot 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 (!liaracter, and could be fully reaped and gathered by one
nation. All that it was necessiuy to do to gather the product of this
enormous region was to establish a few trading posts, which siiould bo
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 ha<l collected. In that way tins 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. (3AUTER. 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 nuike good the title
tVmnded upon first discovery of a new region. And I had said that
the nature of that occupation nmst depend upon liio nature <»f the
tiling to be occujiied, and that while acts of occupation in one (juarter
of the globe might be sntlicient to nuike good a title to but a very lim-
ited portion, in other i>ortions of the globe they might be sutlicii^it to
make a title to a very considerable region of tln^ earth, Now, I wisli
to apply those views to this Bering Sea region, wMch was the great
theatre of Russian enterprise, and to show, upon all the princii>les rec-
m
■5H
92
ORAL ARGUMKNT OF JAMES C. CARTER, ESQ.
ognizcd ill tliat njre, that her exclusive title to all, or uoarly all, of this
ref-ioii is very fully made out. And, in the first ]»lace, let ine again
brill}; to your attention ln're that the sole product of tins rejjion was
subscantially fur-beariiij;' animals and other animals useful for their
skins, and tiiat the jiJitheriii}? of that product was the sole benefit that
mankind (;ould derive from that portion of the ^^hibeat the time. And,
next, there was only enough for one power, and that one power was
abundantly competent to reap the entire harvest. Theni was not
enough for two. Several nations might, indeed, <!onteiid for the bene-
ftts of this trade in fur-bearing' animals, but if they did, there would
not be enough for all of them, wiiilst the liussian trade would \)e
impoverished; aud that wouhl be of no advantage to the other nations
of the earth: they would make investments in it which would not be
remunerated. It would be best, therefore, for the countries immedi-
ately concerned that the reaping of the entire harvest should be left to
one. But, in the next place, it would be better for the interests of
mankind; and that is the important consideration here. J»y leaving
the monopoly of the fur trade and of the otiier animals to Russia alone
the trade would be regular; the world wouhl be regularly furnished by
the product of this region; it would be furnished at the smallest
expenditure in money and labor, and it wouhl be furnished, tlieretV»re,
at the lowe.' fc price. And, consequently, all interests — those of rivsil
nations and - ' the whole world itself — 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 le.ave
the wliole to be exph)itcd by the i'vAv, or the one, who can successfully
do it. Now, a( ting upon tliese views, Kussia ujado 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 8ea, and still others
along tliis north-west coast. It is true that along the northwest coast
slu^ met with tlie rivalry of other nations, and they nuide similar estab-
lishments ahuig that coast, although not to such an extent as Russia
did. But all north of the (50th degree of latitude was left exclusively
to her.
The President. Did you say GOth or G2nd?
Mr. Cartkk. 1 say the (JOth. It is sometimes called the Cist. The
line which separated the uiupiestioned part of JUissian possessions
from tho:"j which were (piestioned was sometimes styled the GOth, and
sometimes Gist degree of north latitude, tlie line being somewhat
indefinite. Now that was a title which Russia had asserted upon the
ground of prior discovery, earlier than the year 18(M>; that occupation
she had made earlier than 18(K). She had, in her own view — and 1 think
justly — done every act necessary to secure to her a complete and exclu-
sive title up(Ui all tiie shores and all the islands of that sea, and to the
Aleutian Islands, which bounded it on the southern side. In 179t),
acting upon the assumption that she had thus acquire<l an exclusive
title, she nnule a grant of the exclusive privilege of that trade to a cor-
poration existing under her laws, and that was by what is called the
Ukase of 171M), or, perhaps nuue 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. ]
Tliese extracts from that Ukase will be suflicient to convey an idea
of the nature ami extent of this grant by the Russian Crovernment.
It was not a public fact notified to all the other nations of the world;
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
93
Tlie
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and the criticism is on this ptnmiid made by tlie learned Counsel for
(Ireat Ilritaiii in their Case that it was a conees.sjoii only in favor of
certain Unssian snl)j»'ets, and was not h'veled aj;ainst other nations,
and therefore no evidence of an exclusive rij,'lit against otlier nations.
]Jut that seems not to be a. correct view. It was on the face of it an
uHKumption of proiJCity and ecunplete dominion l)y Hussia over tiie wliolo
re{j:ion. The act would have had no si<;nificance unless Ifussia had
entertained the view that she was the sole i)ro|>rietor, aijainst all other
nations, of that rejjion and of those products. And, except uiK)n that
view, it w<udd have operated, not in favor of Russian citizens, as it was
desifjned to operate, but aj;ainst them. If it were allowed that it was
simply designed as a concession in favor of certain Kussian subjects to
the exclusion of others, its effect would have been to extend the privi-
lege to all nations and relieve Hu'm very largely of llussian conipetition.
Of course, such could not have been its intention. Tiie design was,
not to promjJt other nations to iiitertere with that trade, but to secure
the whole of it for the benetit of Kussia alone. That, 1 think, is very
clearly the proper interi)retation 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 siioidd continue to be,
even among llussian subjects, a disastrous competition feu* the purpose
of reajting the benefits of that region. A trade of this nature, if
engaged in by nia.iy Russian subjects, would be a source of loss, aiul
it was better to confine it to one proi)rietor. These were the motives
upon which the Charter of 17!>!) was based. In order to show the view
entertained by Kussia at this tinu», 1 may read a quotation which
api»ears on piige 15 of our Counter-Case, from a letter from the Russian-
American Comi>any to the Kussian Alinister of Finance (quoting):
Till! excliisivo right grantuil to the ('(mii)iHi,v in tlio .vt-ar 1799 imposed the prohihi-
tioii to tradt) in those rcj^iims. not only iijion loici .iicrs, hut also upon liusHian siih-
jects not Ix'.lonjiiii'j; to tho c(inii>any. This )ii-ohil)itii)ii was a<;ain aninni-d and nioro
clearly delinod in the new juivilr>;es granted in the year 1821, and in the regulations
concerning the limits ot' navigation.
Now the next public act of Kussia in relation to this region was the
celebrated Ukase of 1S21, which cuts such a figure in this (controversy.
This Ukase was of a different character in ()ne particular: it purported
to be levelled against other nations and to prohibit tlieir interference
with this trade. It will be found on page 1(» of the hrst volume of the
Ai>pendix to the American C!ase. The substan<!e of it consists of rules
relating to the navigation and trade ofthc.se northern regions, and the
first three sections of those rules are the ones which more nearly concern
us. They are as follows :
Skc. 1. — The ])nr8nit8 of eomniorce, whaling, and (isliery, and of all other industry
ou all islands, ])orts, and gulfs, including I lie whole of the northwest coast of America,
beginning from IJehriug's Straits to the 51^ of northern latitude, also from the Aleu-
tian Islands to the eastern coast of Siheria, as well as along the Kurile Islamls from
Uehring's Straits to the South Cape of the Island of i;ruj>, viz., to the ■15"- 50' northern
latitude, \& exclusively granted to Russian sulijec'ts.
8kc. 2. — It is therefore prohibited to all foreign vessels not only to land on the
coasts and islands belonging to Iifussia a« stated above, but also to apjiroach them
within loss tlian a hundred Italian miles. The transgressor's vessel is subject to
conliseation along with the whole cargo.
SKC. 3. — An exception to this rule is to bo made in favor of vessels carried thither
by heavy gales or real want of provisions, an<l unable to nmke any other shore but
sncli as belongs to Russia. In those eases they are obliged to prodnect convincing
proofs of actual reason iw such an exception. Shi])s of friendly governments merely
on discoveries aro likewise exoni])t fnun tlie I'oregoing rule fSicc. 2).
In this case, however, thoy must itreviously be provided with jmssports from th<
liu^siau Minister of the Navy.
I
94
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Tlion follows an olaborate series of rules (lesijjned to oi)erate upon
foreign vessels, and to apply to eases where there are any infraetions
of these iirohil)iti<»ns, and, where seizures and (confiscations shall follow,
providinj; how the conliscations shall be nuule.
[Quoting- apiin at the request of 8ir Charles Russell]:
Skc. 14. — It Ih likifwim' iiitcnUctt'd to forpijj;ii sliip.s to ciirrvoii any triifllo or Ijartcr
witli tlm nai.ivos of tlui islainls, and oftlio north wost coast of Aniciica, in tlic, whole
extent luiD'aliovc nK.'ntionetl. A Hhip convictiMl of tliis tradu Khali Ik; conliHonted.
Now here was an assertion of sovereijrnty over the whole shore on
the Asiatic Coast, from lieriiifjf Straits down to the Island of Ihup,
which is sibout where the jminter now is [indicating- the ])Osition on tlio
nnip], and near the 47111 degree of north latitude, and ii extended on
the American Coast of Bering Straits down to the 51st degree of north
latitude, thus carrying the Russians further south on tlie American
coast than they were carried by the ('harter of 171)!), which limited them
to 550. The character, theiefore, of tliat jHiblic; Act of Russia, so far
as the shores were concerned, was unmistakable. It assumed absolute
and entire sovereignty over them, an«l, 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 dis(!overy. What was the character of that
assertion in respect to the sea, for that is the imi)ortant<piestion before
usf Was it an assumi)tion of dominion on the ]>art of Russia over the
■whole of liering Sea, and to that part of the Paciiic Ocean embraced
within those boundaries? 1 )id it assume, did it purport, to be an assump-
tion of (lominion on the ])art of Russia ovei- the whole of Rering Sea
and of the North I'acific Ocean along these lines? 1 do not think that
there is any evidence whatever that that was the nature or intentiim
of the Ukase — n(me at all. An assumption of that kind would have
been tantamount to saying that that vast extent of sea was Russia's
property and included within her territory, and therefore subject to her
dominion and laws as such. J{ut there is nothing in this Ukase of 1821
importing that the intenti<m of Russia was to make any such pretension
as that in the way of authority over the sea. She said this:
Skc. 1. — Till- imrsiits of ooniMHTco, wlialing, and lishcry, and of all other indnstry
on all JNlandH, ])ort.s, and j^iilfs, includin<; the wlndeof the northwest coast of America,
l»e;i[inninfr from Merino's Straits to the .'31'^ of northern latitude, also from the Aleu-
tian Islands to the eastern coast of Siberia, as well as alun^ the Knrile Islands from
IJering's Straits to the South Cai)e of the Island of IJrnp, 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,
lia<l a i)erfect right to do. Nothing was more clearly admitted at that
time, than that every nation had a right to jirrogate 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.
SIX'. 2. — It is therefore ])roliibited to all foreign vessels not only to land on the
coasts and islands belonging to Russia as stated above, but also to a.p]>roa(;h them
Avitliin b^ss than a hundred Italian miles. The transgressor's vessel is subject to
confiscation along witli the whole l^•lrgo.
Mr. Justice Harlan. That is not an absolute doctrine now.
Mr. ('ARTER. It is iin iidnutted doctrine now. Every nation has a
right to claim for itself the benefits of its colonial trade. Now all that
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
95
1
lUissia undertook to do was to prot^'ct an cxcliisivo {riant of its colonial
trade; and it adopted tlie ineiisnie — a fandli;ir one in that a^e — of
interdicting tlie api»roa<li of ii fon'iyn vessel within a certain line of
the const. Now what was the reason o\' that? The {jenersil rule of
internatioinil law which limited the sovereifjnty of a nation to a strip
of the sea three niih's in width and alonj; its coast, was not as well
lciH)wn an»l acknowledfied in that aj^e as it is now, but it was nearly so.
It was perfectly familiar at that time to the statesmen, jurists, and
legislators of tiie world; not ))erhai>s so perfectly established as now —
Ibr the freedom of the seas was snbject to more limitations then than
iio^v — but still it was a recojiiiized doctrine at that time. lUit of c(mrso
the territorial limit of u nation could not be the limit beyond which
it could not exercise any ])ower at all for the piupose of prot<'ctinp sin
interest attached to the shore; it W(tnld be permissible for a nation to
j»re.serve the rij;ht to its colonial tra<le by interdietinjs; the a])i»roa<'li of
foreifjn vessels within a much {greater width than three miles. If a
forcif*!! vessel could come to within a short distance though more than
tiiree miles at a favorable moment for its i)urposes, all the benetits of
the colonial trade of a nation could not be secured to that nati«)n. A
nation nuist be ])eiinitted to luevent vessels from hoveriniu: on the <'oast.
The I'KKSIDEKT. Do you mean in reference to ott'ences inv<dving
conli.seation?
Mr. Carter. What I mean to say is that the ofllences which involve
confiscation could be committe<l by coming within one hundred ndles.
The Tresident. 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 ii|ton that point,
but that is one of the sections of the prohibition. ISow, in onler to
show what measures were usually resorted to for the i)urpose of i)ro-
tecting colonial trade, and wluit measures were san<^tioned, 1 may refer
the learned Arbitrators to a decision of Chief Justice Marshall of the
Sujueme Court of the United States in the case of Church against
Jlubbart, which is reported in the second of Cranch's Kei)orts, i)age
187. Mr. Chief Justice Marshall in that case says:
That the law of nations pioliibitB tlio oxficiso of any act of authority ov«(r a vcssol
in tlie Hitnation of the Aurora, an<l tiiat tliis ncixnre is, on that aci'onnt, a nxM'e
maritime trespass not witiiiu tho exception, cannot be athnittcd. To rcii.son from
the extent of tlie ])roto(tion a nation will atl'ord to forciy;inM'8, to the extent of tiie
uioiins it may nse for its own Mccnrity. does not Hccm to lie ])crfectly correct. Jt is
opposed by jirinciplcs which are universally acknowledgi'd. The anthority of a
nation within its own territory is absolnte .'Mid i-xclnsive. The seiznre of a vessel
within the range of its cannon by a foreign Coree is an invasion of that territory, and
is a hostile act whicii it is its dnty to rejjcl. Hnt its power to secnre itself from injury
nnty j-ertainly be exercised beyond the limits of its territory.
Ujion this principlt^, the right of a belligerent to search a neutral vessel on the high
seas for coiuraband of war is niiivcrsally adinilted, because the belligerent has a
right to i>revent the injury done to liiniscli" by the assistance intended for his enemy.
So too, a nation has a right to proliildt any commerce with its <-olonies. Any
attempt to violate the laws made to protect this right is an injury to itself which it
nniy prevent, and it has a right to use the means neressary for its [irevention. These
means do not appear to l>e limited witiiin any certain marked boundaries, which
rcnniin the same at all times ami in all situations. It' they are such as unnecessarily
to vex and harass fonsign lawtul conimen e, foreign nations will resist tlieir exercise.
If they are such as are reasonable and necessary to secure their laws from violation,
they will he submitted to.
In different seas and on diirerent coasts a wiiloror more contracted range in which
to exercise the vigilance of the (iovernnicnt will be as-onted tc Thus in the Chan-
nel, where a very gre.kt pari of the conuncrce to and from all the north of Europe
jiasses through a v»'ry narrow sea, the seizure of vessels on suspicicni of attempting
an illicit trade uiust necessuril^ be restricted to very narrow limits; but on the coast
m
II 1 1
;!^
96
ORAL ARGUMENT OF JAMK8 C. CARTER, ESQ.
of South AiiUiiicn, Httldoiii froquonted by vuhhoIh but wtr tho piirpoHo of illicit trade,
the vinilaiito of tho (ioviTiiineiit inny ho extondod Hoincwlmt further, and forui^ru
uutioiiH Nuhtnit to nu<;1i roKulutioim iih hfo roaHonuhlo in theiuHelvcH aii<l are really
iiocfHMary to 8o<;nro that iiu>iH)j>(ily of coh>niul coiiiiuurcc, which iH chiiuiod by all
natioiiH iioldiuf; di.stiint iiosrieHHioim.
If this rifiht ho extondetl too far, tlie oxeroiae of it will he roHi.sted. It has occa-
hIoiumI lou^r and fro(|Uent conteNtM which havu MoiuittinicH ended in o)ien war. The
Kn^liHh. it wili hu well recollected, complained of the ri;;ht claimed by Spain to
Heareh tlieir vchhoIh on the hi^h seiiH, which was carrittd ho far that tho tiiiiirdu Costaa
of that luition aeizod vessels not in tho neiuhhorhood of their coastM. This ]>ractico
Av;is tho Hubject of lonjjf and fruitless nei;'otiiitioiis, and at length of open war. The
rifjht of the Spaniards was supposed to bo exercised unreasonably and vexatiously,
but it never was contended that it could only be exorcised within the range of the
cannon from their batteries.
Indeed, the ri(fht given to onr own revenue cutters to visit vessels four leagues from
our coasts is a (lecliirati(U) that in tho opinion of tho American Government no such
prin<'i]i1(^ as that contended for lias a real oxist(Mico. Nothing, then, is to be drawn
from the laws or the usages of nations, which gives to this ]>art of tho contract
b<;foro tho court the very limited construction which tho ])laintilV insists on, or
whi(;h iwovos that tho seizure of tho Aurora by the Tortugucsc governor was an act
of lawless violence.
The Aurora was on the hi}?h seas at that time. This was a case upon
a policy of luariiie iiiHuranco, and the i)olicy contained a warranty that
the vessel shonld notenpifje in prohibited trade. The ves.sel had been
taken by a I'ortngnese force as havinfj been enjyafjed in a trade pro-
hibited by the law of Portupil, and she was captured far outside the
three-mile limit and for au olfcnce committed outside the three-mile
limit.
The President. In time of peace?
Mr. Cartkk. In time of i)eace. This vessel had, it was alleged,
come within this limit — J <lo not remember tiie limit — but it was much
more than three miles. The vessel had, as was alleged, contmitted an
otlence a{j;ainst that law of I'ortuffal designed to protect her trade; and
having committed that offence, the Portuguese cruiser, or some other
Portuguese force seized her, aiul the insurance comi)anies set that up
as a defence against their liability. The argument was, on the part of
the ]»laintitf in the suit, that she was not engaged in ])rohibited trade,
and that if she were, she couhl 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 shouhl not come within a certain distance
greater than the three miles. Mr. Chief Justice Marshall wasof a dif-
ferent opinion, as ai)pears fmm tlie passage 1 have just read.
Mr. .Justice IIaulan. What is the date of that decision?
Mr. Carter. 180-4 or 1805, perhaps, 1 do not remember.
Mr. Phelps. This opinion is ])rinted on page 181 of our Argument.
The President (to Mr. Carter). Is it your con tenti<m that this
principle prevails at the present day in international law?
Mr. Cauter. It is our contention, and we suppose that there could
be no <ljspute on that i)oint.
Sir Charles Kitssell. It nmy be open to observation.
Mr. Carter. When the other side (!ome to make their observations
they will have, if they question this decision, to upset the opinion of
Lord Chief Justice Coburn in Rerfina v. Kehu, a case decided not long
ago. That case engaged the attention of a large number of judges in
Great Tiritain. 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 Kussia? 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 Otiean — of a right
to legislate against foreign nations in respect to these seas — of a right
'
ORAL ARGUMKNT OF JAMES C. CAHTKR, ESQ.
97
! could
ations
ion of
t long
ges in
r Lord
,t was
it an
er ter-
right
right
to exclude other nations from them — was that the nature of the preten
sion set upf Not at all. There was a grant to a private company of
the exclusive privilege of colonial trade to which liussia had a perfect
title; and it was designed to prohibit any interference with that trade
by other nations. 1 1 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 justiHed, not only by the jmictice 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 Ciiief 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 wouUi 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 justitiable.
For, what purpose could a vessel other than Russian entering Bering
8ea in 1821 havef 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 therelore the probability was that she was engaged in an
illicit trade. The very circumstance that she was in that liussiau 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 exi)osing herself to any
.suspiei<m 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 dilference 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 tliink the interdict is confined to what is done on the
coasts (quoting again):
Sec. 1. — The purBuits of coniniorce, whaling, and fishery, and of nil other indus-
try on all iBlauiiB, ports, and gulfs intludlnfr the whole of the northwest c-oaxt of
America, beginning from Hehring's Straits to the 51° of northern latitude, also from
the Aleutian Islands to the eastern coiist 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 contrived for the purpose of securing the grant.
B S, FT XII 7
98
OHAL AROUMKNT OF JAMES C. CARTER, ESQ.
TLe grunt is one thing, the measure is another. More jiresencetliere is a
violation. Now, 1 have said that upon the face of this UkaKe it docs n(»t
purport to assume dominion over any part of the Hea; it purports only to
establish a defensive and self-protecting regulation which is to operate
over one hundred miles of the sea. And let mo 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 for a
vessel having a cargo of goods on board to come and hover on tlu^
coast of a nation until another vessel comes out and transships her
cargo. Now, a nation must have the privilege of preventing Miis in
some way; and if a nation were not permitted to exclude the smuggler
for more tlmn three miles from the coast, she would be almost <lefence-
less against it. And therefore nations must have some manner of pre-
venting vessels from coming within sight of the shore.
Justice IlARLAN. 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
Datur'j of tliis prohibition contained in the Russian Ukase of 1821.
Justice Harlan. 1 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 U not important to urge it, but it
is a fair part of the discussion. It may be well (;on tended that not
only did Russia make tliis 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. Cartes. 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 tliat 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 Quincy Adams, then Secretary of State of the
United States, this was the explanation, or part of the explsination,
given by tlie Russian Government. I read from the note of M. de
ORAL ARGUMENT OF JAMKS C. CAKTKK, ESQ.
99
Polctica to Mr. Adiinis, (»ii page 133, Voliiino first of the American
Appendix:
I Hhall lie luiire succinct, h\t, iii tlin exposition of the motives which determined
the Imperial (iovuninictit to prohiltit I'orcigu vosmcIh from approachitiK the north-
west coiiHtof Anicricit Itclon^iii'^ to Ku.shIii within the distance of ut least 1(H) Italian
miles. This measure, however severe it may at tirst appear, is, after all, but a
measure of prevention. It is exuluHiveJy ilirented ajfainst the culpable enterprises
of fureijifn adventurers, who, not iMinii-nt with exerttisiuK upon tho eoasts above
mentioned an illicit trade very pntjodicial to the rights reserved entirely to the
Russian American CiMupany, take upon them besides to furnish arms and aiuniuui-
tion to the natives in the Uussiau ])iisse.ssions in America, exciting them likewise iu
every manner to resist and revolt a^inust the authorities there OHtablished.
The American (iovernmeut tloubtless 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 tho part of Russia to the Federal
(jovvrnmtut from tho time that diplomatic uiissious were organized between the
countries. These remonstrances, repeated at ditl'ereut times, remain constantly
without etfect, and tho inconveniences to which they ought to bring a remedy con-
tinue to increase .... Pacitic means not having brought any alleviation to the just
grievances of thn Hussian American ('(iinjiany against furoign navigators in the
waters which environ their establishments on tlie northwest coasts of America,
the Imperial (lovernuicnt saw itself under the necessity of having recourse to the
means of coercion, and of measuring the rigor accoriling to the inveterate character
of the evil to which it wished to i>ut a stop
I ought, in the last place, to reijuoKtyou to consider, sir, that the Russian possessions
in the I'acitie Ocean extend, on the northwest coast of America, from Uehring's
Straight to the tifty-tirst degree of north latitude, and on tlie opposite side of Asia
and the islanils adjacent, from the same strait to the forty-lil'th de;;'ree. The extent
of sea of which tliese possessions form the limits coin)ireliendH all the ciinditions
wiiich are ordinarily attached to shut ntun (niers lerniees), and tho Russian Gov-
cinnient might conse(|Uently Judge itself authori/.cd to exercise upon this sea tho
right of sovereignty, and especially that of entirely interdicting the entrance of
foreigners. Itut it i>refcrred 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 tlie Russian Governnjent, tliat this prohibition
(if the entry of forcij-n ves.sels 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 tho colonial trade of Russia agaiust
illieit invasions of it by foreigners. "
Mr. Middleton, the American Minister at St. Petersburg at that time,
addresses a note to Mr. Adams in wliich he says that this is the purpose
which the Russian (Jovcrnment 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 Ai^pendix:
To Mr. Sporansky, Governor (Jeiieral of Siberia, who had been one of the counnit-
tce originating this measure, I stated nivoliicctioiis at length. He inlormcd me that
the lirst intention had been (as Mr. Polctica aftirwards wrote you) to declare the
iKirtliern ]iortion of the Pacitic Ocean mure cluuxiim, but that idea being abandoned,
]irobably on aoconnt of its oxtravagaiu'e, 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 Comp;iny the monopoly of the very
lucrative trattic they carry on. In order to do this they sought a preoe«lent and
found tho distance of 30 leagues, named in treaty of rtreclit, and which may be
calculated at about 100 Italian miles, suthcient for all purp<ises.
The President. Is there any evidence that you know of that the
Russians at any time previously to that correspondence, had assjMted
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 <authoriry; 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.
. ( ,■
i
100
OUAF. AmiirMKNI' OF JAMKS (^ CAUTKR, ESQ.
Mr. Cartkk. Vi's, tli(\v 8iigp'ste«l that they liiul the ri^ht to asHert
it. I Silt they protest that they liave not asserted it in fart.
Ilaviiii;(l«>s< rilxMl thJH Ukasu of 1H21, and the iiatnro of it Hiich an it
appears t(» lie Ironi a fair interpretation of tiie face of it, and from the
deehiiatiotis made by tlie ItnsHJaii (iovornment in reference to it, it in
next in order to call tlin attention of tlie Arbitrators to the notice \vhi<th
was taUeii of it by the Amerieau and tlie liritisli (jovernnHtnts. Uut
l)efo)'«> I enter npon this I desire to occupy a few moments in dealing
more partitnilariy with th<> question of tlie real ri^'hts of UusHia in or
over Meriiig tSea and its shorei , what they were, and the place which
they till in argument here, and in the ({uestions submitted to the
Tribunal.
We see what the claim of Hitssia was by this fJkase of 1821; that it
was an asMerti«m, not of the rijjht of s(>verei};nty, but of the riftlit to
(>stablish a prote(-Mvere;>'iilation, operative indeed at a {greater distance
than three miles fnmi the shore. I have, in the course of pointing' that
out, somewhat brietly allioled 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 exen-ise of a selfpiotecting jjower, such as
a defensive re};nlation of this sort is. I wish to foUow up those obser-
vations a little further, for the purpose of fixing in the nr'nds of the
Arbitrators the real nature of these two things and of their essential
difierences.
What is full dominion or soven'ignty such as is exercised by a uationi
Whiit is itH A full right of sovereignty includes, of course, a full
right of proi)erty over all the territory to which that sovereignty
exlcials. When I say a full right of property, 1 mean of absolute
propert'" in the territory over wlii«'li it extends. That is included in
the idea of sovereignty; and i; includes in the next place —
The rin;sM)i';NT. Voii d<» not mean property in the civil sense?
Mr. Cautkh. I do mciiii propt'ity in the civil sense; but I ought
peihapsto expliiin that. Take the \n' ate proiiertyiu the land of any
paiticiiliir ('((Uiitry. Writers on the h; v of proi)erty separate property
interests iiilo two |)arts. One of -them they call the tloniinium utile,
and the other the tlominium eminniti. The dominium utile is the right
to use and enjoy; and it is that, and that only, which is vested in pri-
vate individiial.s. The ilominiiim emincnti means the absolute property,
by an exercise of which a nation can atany time displace the individual
right. That (loininiitm emiiuiifi is vested in the sovereign j)ower alone,
in the (ioveiiiment; and it is that sovereign right of property which I
mean when I say that s(»vereigiity embraces the full property right in
the territory over which it extends.
In the next i)lace, it embraces the right of legislation over the whole
territory, the right of legislation in respect to persons and things, and
<'onsequently the power of excluding any foreign nation or its citizens
from any part of the domain which it covers. It embraces the full right
of Government; and that is necessarily exclusive of every other Clov-
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 i)roi)erty and the right of
legislation, is necessarily limited by a rigid boundary line. That is one
characteristic of sovereignty; it must be limited by a rigid boundary
line. Property cannot exist unless it is specified and described; and,
of course, the limits of the laws of a Government must be absolutely
and jnecisely known ; they cannot shift and vary according to circum-
stances. It is, therefore, the characteristic of this full sovereignty
ORAL AROUMENT OP JAMF.S C. CARTKR, ESQ.
101
lill
in
d,
i
which a nation poHNess«'H over its territory thftt it in limited rijridly by
a boundary line, and that right of Hovereignty is pussesseil by the
nation as a Government, as an or^^ani/ed community eniraged in the
buHinesB of administering the laws and welfare of the territory over
whieh it extends.
There is another <'lass 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 asari individual. First let me
mention the great right of self defence that acconi|)anies a nation
wherever it goes and nniy be excrciseil by a nation, not beiause it is a
Government, but because it is an individual. It exercises this right of
self-defen(;e much as an indivi<lual exercises it. All of us have the
same right of self defence, not because we have any <iov<'inmeiital
l)ower, but because we are persons who luive rights, and that is one of
them. Just so it is with nations; wherever they have a right to he,
there they can oxeniise those powers which ttre necessary to protect
them as persons.
In additi<m to j)rotecting themselves as p« r ions they may ])rotect
their property. Nations being corporate per: (Uis, not natural persons,
<'an scarcely be touche<l outside the limii of th«'ir territory except in
the way of touching their pntperty. I s.iy those rights of self protec-
tion niiy be exercised by a nation wherever the nation has a right to be;
and a nation has a right to be anywhere upor the high seas. A nation
goes wherever its property goes, from one end ef the worhl to the other,
and it exists as a nation until it reaches the l)oundaries of some other
nation. It canm)t i>as8 those. Hut on the high seas all the Jiations of
the world exist together. They are citizens together upon (lio^-e seas.
Their commerce goes upon those seas, and wherever their <'iti/ens and
their commerce go, there the nation goes, there its power goes, as an
individiml. There, if its pr(>i)erty is attacked or its citizens are
attacked, it has a right to deleiul them. . It has the great right of self-
defence, and it has a right to use just such means and nu'thods and
weapons as are necessary fully and perfectly to protect itself. That is
not b^ duse 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 high seas. Can itnotbe deteiuled?
What is the man of war convoying them for, except for the purposes of
defencet Wherever upon the seas a nation's ])roperty is, if that i)rop-"
erty is in any manner assailed, it nuist jirotect it. Commerce ccmid
not exist; the intercourse of nations couhl not subsist, except upon
these principles. Let it be supposed that the citizens of some foreign
nation should commit a tresi)as8 upon the property of citizens of the
United States somewhere upon the high seas, and the owners of that
property should make comidaint to their own Government, and that
Government should go to the na^'on 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 jirotect your own citi-
zens. Have you not just as much power to protect your citizens on the
high seas as we havel If a trespass was attempted against them, why
did they not resist and beat oil" the tresjjassers, 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 ".
l! »f
16 ■
m
102
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
m
But these princijilos do not rest upon any theoretic statement. They
have been iiiiivers..ily admitted in the inaetiee of nations; and it is
absolutely true — there is no sort of qualitication to the proi)<>sition —
that wherever a nation llnds it neeessary to employ acts of force upon
the hi};h seas in order to i)r(»teet its own riglits or the rijjlits of its cit-
izens, it has the Tight to emi)loy such acts of force. There are many
illustrations of this. • Many of them arise — because that is where the
occasion most frequently arises — under belli jjerent 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
belongin}>" to France attempting to enter that blockaded port. What
does she do? She captures her and (tarries her in for condemnation.
Why? Here is a French vessel, friemlly to both jwwers, not designing
to injure either one of them, engaged in peaceful commerce, not directly
aiding or assisting the belligerents; and yet when she attempts to enter
the port of one of them with whom she is a friend, the other who is
also a friend, takes her and captures her. IIow 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; 1 am endeavoring to
subdue the United States, and to comjjel her to come to ])eacewith 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 1 have right to do — and,
therefore, I take you and capture you on the high seas." Thc^ 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. What is done?
She is taken and captured because it is necessary. She is attempting
to assist an enemy. That is, she is doing acts which would amount to
an assistance and which render the operations of one of the belligerent
parties less eftective.
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 ln,ve alresuly 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 cannct extend its system
of law beyond that three miles. We know that; but nevertheless it
has a right, as a person, to exert any power of self-defence against
threatened invasion of its interests by other persons, and it has a right
to do all acts which are necessary for that purpose. The line up to
which it may exercise its authority is not a boundary Hue 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.
Tlie same is tbecase with all those municipal laws of various nations
designed to ])revent 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 leagues of her coast, are binding
U])on 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 OP JAMES C. CARTER, ESQ.
103
uatious because they are defensive acts of force which she has a ri};ht
to exert. She would bo quite right to exert them even if the laws had
not been passed. If Great Britain had no hovering hiwupon her stat-
ute book, she wouhl have a right to give instructions to her cruisers to
prevent vessels hovering upon her coast under circumstances calculated
to excite siispicioa that they were engaged in smuggling; and if other
powers should cuii-plaiu of tliat, 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 uiuler an absolute Government, it is
necessary to have enactmeiits of municipal law for the purpose of gov-
erning seizures in the case of condenuiation. These methods are ii.ll
prescribed by municipal laws. These municipal laws are perfe<;tly
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 ott" 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 a« 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 am
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 Prwsidfkt. Would yoa 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-
''Sts us very highly.
Mr. Carter. I thank you.
This right of self defence, which I assert and which is so entirely
different from the right of sovereign jurisdiction, does not militate at
all against the freedom of the seas. It asserts the freedom of the seas.
if
¥
104
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
&■•
It is exceptional in its character. It asserts the general rule of the
freedom of the soas, but sfiys, 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 Morgan. Mr. Garter, I believe that you have not as yet read
that part of the correspondeiufe between the two Governments relating
to the (jnestion 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, l^o; 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 Cuarles IIussell. Certainly she did.
Senator Morgan. She did refuse?
Sir Charles Russell. Certainly.
Senator Morgan. And that was the reixson why a claim for damages
on the part of the United States was excluded from this treaty.
Mr. Cartp:r. 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 refu.ses
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 daniage which they would otherwise suffer.
Mr. Carter. In my judgment the United States has the power to
]>revent the trespass and the consequent damage, whether Great
Britain is willing to answer for the damages or not.
Senator Morgan. In this case I am trying to get at the history of it.
That matter had been under discussion, and Great Britain had refused
to become responsible for the trespasses of her nationals.
Sir Charles Russell. She denied that there was any trespass upon
the property of the United States.
Senator Morgan. I understand that. My question is predicated upon
the supj)osition 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 sery negotiation refused to become responsible, and excluded it
from this treaty on that account? That is the point I wanted to get at.
Mr. Carter. I believe that to have been the case.
Seimtor 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.
ft
.3
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
105
in8
ty
he
Senator Morgan. I trust I am not too early with the su^rs^^stion,
because it is an important matter in the case, and I shall expect to
hear argument upon it on both sides.
Mr. Carter. 1 will give to that question the attention which, from
the interrogatory of the learned Arbitrator, it seems to deserve.
1 have saiil that this position, which I am seeking to nmintain, 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 parthidar. It admits that <loctrine, 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 freeilom 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 ])ower
extended over it. In other words, our jjosition is that there is no part
of the globe, on the sea or on the land, that is not under the dominion
of h(Wj and under the dominion of a law which the courts of every
nation will take notice of, even the numicipal tribunals, and under the
donnnion of a law which this Tribunal, as an international one, will
particularly take notice of.
1 have been thus explicit upon this subject, and have devoted to it
the attention 1 have, for the reason thatl think there has been consid-
erable confusion about it. There is a confusion in relation to it in the
opinions of writers upon internatiimal law. They have not, as a gen-
eral rule, pointed out these twodistinctand ditl'erent s])e<'ies of author-
ity which a nation may exercise. They have not clearly defined them.
They have not placed u])on 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 comnmnications between Great Britain and Ameiica 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 i)hraseology
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 deline both things. Both
these 8pe<!ie8 of autiiority are sjjoken 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 describ-
ing that authority the exendse of whicli is necessarily limited by a
boundary line. It has been used sometimes in tiiat narrow sense, and
at other times it has been used to des'n-ibe 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 "jurisdicti<m" in
relation to matters of municipal law. We sometimes speak of a court
having jurisdiction in a ])articular 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
f'f
Hi
106
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
certain thiiiff, meaning by it that it has the power to do a certain thing.
We sometimes spealt of tlie Jmisdiction of a inuni(;i[>al officer merely to
describe the power of tiic olilic(n-. We say that a taxinjj officer has the
jurisdiction to assess persons for taxation. We mean that he has the
potter to do it, and that is all we mean. "Jurisdiction " has no proper
ai)plication 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 8ea, and of the rights which Russia had gained in
that sea, and the rights the United States has, consecjuently, gained
by the acquisition of Alaska from her? Has tlie 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
successor of Russia, acquired such right as that? Has the United
States ever made any such claim as that? Never. At no time in the
ccmrse 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 dift'erent grounds; namely, that Russia had jnoperty interests —
interests .n 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, uot because it acquired it from Russia —
because it would have it without any snch acquisition; the only kid
that it has asserted as having been derived from Russia was the fact
that Russia had established tliese protective regulations in Bering Sea,
and that other nations of the world, including (xreat Britain, had acqui-
esced in them; and that Great Britain was not now in a condition to
complain of tliem.
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 liad 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 uot think there has ever been any good foundation
for that.
In the Case of Great Britain, page 13-4, there is a quite formal state-
ment of the several positions which, acciuding to that Case, the United
States have taken in reference to this controversy. I read from that:
The facts stated in this cliapter show that the original ground upon which the ves-
sels seized in 188() nud 1887 were condemned, was that Behring Sea was a mare
claiiaum, an inhind sea, and as such had been convoyed in part hy Russia to the United
States: tliat this j^roundwas subsc([ueiitl,v entirely al)an<loned, but a claim was then
made to exclusive jurisdiction over one hundred miles from the coast lino of the
United States territ(n\y : that, sulisequently, a further claim has been set up, to the
eflect that the United States have i)roperty 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 is a total error. As to the first part of it,
there is to a certain extent, a foundation for the statement. The first
part is " that the original ground upon which the vessels seized in 1886
and 1887 were condemned was that Behring Sea was amare clausum, an
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
107
E
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 upou which the vessels had been
condemned. But £ 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 Couit 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 accjuirodu territorial dominion in
Bering Sea. He stated thatas his opinion; but hasa judge in the United
States District Court of Alaska an authority to speak in an interna-
tional controversy on behalf of the United Statesi? Certainly none
whatever. The position of the United States cannot be gathered from
what a judge of a United States court happens to say in a charge to
the jury. If it can, the United States would be responsible^ for the
utterances of every twopenny justice of the peace throughout the laud;
which they would be very sorry to be.
Where is the position of the United States in reference to this 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 plaice, 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. Tou must take the nation as a whole.
Mr. Justice Harlan. Judges in the United States are independent of
the Government.
The President. !N^ot as a nation?
Mr. Justice Harlan. Yes; they are independent of the nation.
Mr. Carter. If a French citizen should have the misfortune to be
involved in litigation in the United States, and a judgment should be
pronounced against him which he did not like, and he should appeal to
his own Government, and say he did not like it, and the Government
should appeal to the United States, he would be told that he had no rem-
^'dy ; that the Government of the United States was not responsible for
tue conclusions to which the judges came. They might be law; they
might not be law. He had had a fair trial ; he had had the same oppor-
tunity which citizens of the United States have, and that is all tlie
United States could give him; and I apprehend a similar answer would
be made by the Government of France in a similar case.
The President. I am not quite sure as to that.
Mr. Carter. I do not know about France, but I am very sure that
is the answer which would be given by Great Britain in a similar case.
The President. It is a rather difficult, and often-discussed poinf
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 hapi)en 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 citi-
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
''.:■
i;L
un.
4:4
•I
■II
108
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Mr. Carter. It is no more titan a suit against a British citizen.
That is all it amoniits 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 tiiat 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 comi)lained of, tliere 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 ju<lgment, nor could tlie grounds upon which
that judgment was rendered be in any manner imputed to the United
States.
The President. I think we had better consider that as a particular
question, which we will argue when it comes uj) later in the case.
Mr. Carter. Very well. Where are we to look for the true grounds
upon which the United States based itsiuisitionin these controversies?
Why, obviously, to the dij^lomatic communications. The British Gov-
ernment did protest to the United States that this course was pursued,
and that it was imrsued 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
(iovernment — very properly made — "We want to know from you, not
from a District judge up in Alaska, but from you, who have the
authority to state, what your grounds are. It is from you that we
wish to know the grounds upon which you presume to seize British
vessels."
That demand was made; and what was the answer to it? for there is
where you are to look to ascertain what the position is which the United
States Government takes. Therefore, I must again call the attention
of the arbitrators to the response which was first made to these
demands.
The President. Do you mean to enter on a new subject?
Mr. Carter. I perceive that the hour of adjournment has about
arrived ; and the citations which I purpose to read I might perhaps as
well leave for the next session.
The President. We will meet on next Tuesday morning, at half
past 11 o'clock.
[The Tribunal accordingly adjourned.]
TENTH DAY, APRIL 18™, 1893.
; half
1
The Tribunal met imrsiiaiit to ad, journnieut.
The Pbesidknt. Before Mr. Carter proceeds, I would beg to offer an
observation. In the course of the last sittinj? we had, I mijfht almost
say, some conversation about a delicate matter, a nvatter which is the
subjectof 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 ascertidning- how far the intention and the contention of
both i)arties, or of eitlior party, go, and not at all to express a personal
opinion, which of course on our bench we are not called ujwn to do;
and sin(;e in this particular case if the words which have been pro-
nounced were misconstntcd, 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 hai)pen to belong.
It is in reference to the words which I si)oke of in our last sitting that
I think it necessary to make this remark.
Mr. Carter. 1 so understood the learned President.
The President. Mr. Carter, if you please to i)roceed, 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 1 feel hardly at liberty to pass it without notice. 1 can-
not, of course, think myself called upon to correct all misrepresenta-
tions of what I may say whi"li 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 me as making some very disparaging allusions to a distinguished
and very worthy judge of a high court of the United States — 1 mean
the District Judge of the United States for the district of Alaska. I
made no observation whatever disparaj^ing 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 maive any dis-
paraging reference to him. I did not even say that his Judgment was
incorrect. G.. the contrary, his Judgment, so far as related to the con-
demnation of the vessel, was a sound and correct judgmeut, which iu
the due course of my argument, I shall endeavor to defend; and 1 have
no doubt it would have been affirmed to that extent by the Supreme
1U9
i'
m
no
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
Court of the United States. Nor did I, iu saying that the Government
of the United States was not responsible for the grounds stated by
judges in their opinions as the basis of tlieir decision, intend to inti-
mate tliat 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 thcni
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 Kussia in the Bering Sea and
transmitted by her to the United States by means of the cession of 18<»7.
1 had made a brief historical sketch of what may be called theliussian
inetentions, 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 eflect 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 ditierent from any assertion of
sovereign dominion. I said that that was the view taken by the United
States and which always had been taken by the United States; and it
was in that connection that I observed that although a somewhat ditter-
ent view liad 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 Kussia had acquired a sover-
eign dominion over that sea, intimating that the United States had origi-
nally based it8.])osition upon that view and had afterwards shifted its
ground. That assertion 1 denied, and it was at that jjoint that the Tri-
bunal rose. It is my purpose now to support that denial, and to say
that, from the first, the United States took but one position in reference
to this matter and have retained it at all times during the controversy.
In order to show this I call the attention of the Tribunal to Lord Salis-
bury's complaint, which will be found at page 162 of the first volume of
the American Ai)pendix. I have already referred to this letter, but it
is imjjortant that 1 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 api)eared 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 eHected
ata greater distance than three miles from the shore. It is on this ground
that Lord Salisbury conceives that the seizures were not justified. He
exi)lains that ground quite fully and closes his letter with these obser-
vations :
Her Majesty'B Governmeut feel sure that, in view of the considerations which I
liavo set rintli in this tlispateh, whirh you will conimnnicate to Mr. Bayard, theGov-
oruininit of the United States will admit that the seizure and condemnation of these
ORAL ARGUMENT OF JAMF.S C. CARTER, ESQ.
Ill
8 of its
letter,
of the
lat the
he pur-
taking
'H'ected
giouud
(1. He
obsei-
which I
bhe Gov-
I of these
Britinb vesnels and tlio im])ris)niiin(>nt of their iniiMtorN and ciowh wore not warranted
by tilt) circunistancuH, and that they will ho ready to atVord reaMonahle (•<iiii|ieiiNjition
to those who huve Huliered in coii.sci|Ueiiei', and ittsiio iiiiiiuMliatc iiistriirtions to their
naval otScers wliicii will jirovent a recurrence of these regrettable incidentH.
Mr. Bayard's lirst coinnninicatioii in relation to these seizures will be
found at page 108. He then had before him the letter whieh I have
just read of Lord Salisbiny. He had before him the grounds upon
whieh Lord Salisbury bastid his objection to tliese seizures; and ho
was invited therefore to a discussion of these grounds and reasons. As
I have already remarked, Mr. Biiyard 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 call your attention. As it is very short I will read
it, although I have read it once betbre. These i«re instructions from
him to the American Ministers abroad, tlie same letter being sent to the
Ministers of several powers, (Ireat Britain included.
Sir CiiAiiLES Russell. My friend has not observed the dates; that
is a month earlier than the date of the communication to Lord Salis-
bury. Lord Salisbury's letter is in August, and that is in September.
Mr. Cabteb. 1 am much obliged to my learned friend; he is entirely
right. Let me withdraw the observation 1 have made that when Mr.
Bayard wrote that letter he had before him the letter of Lord Salisbury
which I have just read. He did not have it before him. He did have,
however, before him the protests against the seizures which had been
made to him by the British Minister in Washington.
He did have those before him. There were several letters from the
British Minister and one of them, perhajis the first, was on the liTth of
September, 1880. The next one is of the same character. The lu'xt is
a communication from the ICarl 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 Britisli
Government — delay arising from the circumstance that the i)lacc from
which information was sought Avas 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. f'ignaud.^
No. 256,] DEPAin'MEST of Statk, Washington, August 19, 1,9S7.
Sir: Recent occurrences have drawn the attention of this Department to the neces-
sity of taking steps for the better protection of the fur-.seal li.sberies in Hebrinn- Hea.
Without raising any question as to the exceptional measures which the peculiar
character of the property in question might justify this (jovernnicnt in taking, and
withotit reference to any exceptional marine jurisdiction that might properly bo
claimed for that end, it is deemed advisable — and I am instructed by the President
80 to inform you — to attain the desired ends by international cor)i)eration.
It is well known tliat the unregulated and indiscriminate killing of seals in many
garts of the world has driven them from place to place, and, by breaking up their
abitual resorts, has greatly reduced their numl>er.
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, yoa are hereby instructed to draw the attention of the Government to
which you are accredited to the sul>|ect, and to invite it to enter into such an
arrangement with the Government of the United States as will ])reveiit 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.
I
112
ORAL AR(HTMENT OP JAMK8 C. CAKTER, ESQ.
I
HiR'li niutliiiils iiH at ]>r<>H<Mit aru itiirHiiiMl, and which tbri>at<;n th<> speedy exteriniiiii-
•tiun of thoHf aiiiiiuils mid r(>ii.>sei|iu<nt HorioiiM lottH to uiankiiid.
The iniiiiMlois of Iho lJiiiti)d States to (Jeniiaiiy, Swedmi ami Norway, RiiHsia,
Ja])aii, and (ircat Hrituin have been eueh similarly UildreHsed on tlio Hubject refurretl
to iu tluH inNtnictiuu.
1 am, etc., T. V. IUyamd.
TImt Wiis tli« first attitudo taken by the GovenmuMit of the LTuited
States towards the GovcriiineMt of Great Hritaiii in reference to this
question and to the questions which might be involved in it. Distinct
discussion is avoided. All extreme assertions are waived iu view of
the conciliatory purposes for which it was written. Nevertheless the
grounds upon which the (Jovernment wouhl 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 i)rotection of it
might Justify the exercise by the I'nited 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 dealijigs
with the subject during the administration of President Harrison; and
the first statement under that administration of tlie grounds upon which
the United States based tlie assertion of its rights connected with the
sealing industry was, as the learned Arbitrators will remember, set forth
by Mr. IJlaine in his note of January 22, 1890, which is found on page
200. That letter I have once read. It is quite long and I do not think
it necessary to repeat the reading of it. It is, however, important to
consider the substance of it, and I shall venture to state that, so far as
it relates to the grounds taken by the United States.
That substan(;e is this: That the seals are an animal in a high degree
ust'lul to mankind; that Kussia engage<l in the industry of preserving
them, iiherisiiing them, and taking the annual increase on the Pribylot
Islands at a very early period ; and that from the time when she first
engaged in that iiulustry 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 Stales acquired this industry
together with the rest of their acquisition from Russia by the Treaty of
1807, and that the United States had carried on the same industry in
substantially the same way without any interferencie by other nations,
or other men, until tiie practice of pelagic selling was introduced; that
this pi-actice of pelagic sealing was destructive of the seal and therefore
destructive not only of this ])articular industry of the United States,
but destructive of the interest which all mankind bad in this animal;
that it was a pure wrong — to use his phrase — contra bonon 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
Avhatever, and which was i)urely an assertion of a wrong. Those are
the grounds taken by Mr. Blaine in this note. That is the same ground
that the Government of the United States has asserted from the first
and which it still continues to assert.
Now, in order to show that those grounds were perfectly well 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. lie undertakes to reduce to distinct points the
several positions taken by Mr. Blaiue in that long letter; and I will
read so much of it:
ORAL ARGUMENT OF JAMES C. CARTER, E8Q.
113
es, and
Mr. Blaine's note ilofeuda the acta coniplninod of by IIi>r Majusty's Guverninent «>ii
the fulIowiiiK ^rounilH:
1. TLttt "the Canadian veHHnls arrested and dotnined in the Hoiirin^ Hca wpro
euga^ed in a purHiiit that Ih in It8*-lt' coiiira honoit moin — a ]iursiiit whirli nt' nuoeHHity
inv<dvcH a HeriiniH and pcrniaueut injniy tu the rightH of the Uuveruiuunt and puoplu
of the United Statt^s. "
2. That the fisherieH had hocn in tlie iindistnrhed posHCHHion and nnder tlie exclii-
Hive (MMitrol of RtiHHia from their diHcovery until the eensiou of AlaHJta to tlie United
StatcH in 1867, and that from this date onwardM until 1»<S6 they had aloo remained in
the undiHturhed )>o8MeH8ion of the United StateH (jlovernmeut.
3. That it Ih a fact now hehl beyond deninl or doubt that the lakin^ of HealH in the
open Hea rapidly leads to the extinetion of the speeies, and that therefore natioiiH
not poHseHtting the territory upon which seals can increase their nuniberH by natural
growth should refrain from the Hlau^liter of them in the o]u>ii sea.
Mr. lilaiiie further argues that the law of the sea and the liberty which it confers
do not justify acts which are immoral in themselves, and whicii 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 tjovernment by the necessity of
defending not only their own traditional and long c.itablished rights, but also the
rights of good morals and of good government the world over.
I have uo fault to find with that statement by Lord Salisbury. It
exhibits a clear understanding of the positions taken by Mr. Hlaine and
well enough describes them, except in the last sentence where he imputes
to the United States (Jovernment 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, w hich Lord Salisbury had dealt with before, of
Kussian claims in Bering Sea, and undertakes to answer and relate
Lord Salisbury's view m 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 pelagit; sealing, so far as respected tiie ground
upon which the tlovernmeiit of the United States based its vicAvs. lie
expressly takes care that it shall not be und«'rstood that the United
States nuike any assertion of a right of mure clauHum as to any part of
Bering Sea. I read the paragraph of his letter from page 233. Ho
says there:
The result of the protest of Mr. Adams, followed by the cooperation of Great Brit-
ain, was to force Russia back to M'^ 10' as her southern boundary. But there was
no renunciation whatever on the i)art of Ku.ssia as to the Heliring Sea, to which the
ukase especially autl primarily ajiplied. As a piece of ley:isIation this ukase was as
authoritative in the doniiuious of Russia as an act of Parliament is in the dominions
of tireat Britain or an act of Uonjjress in the territory of the United States. Kxcc])t
as voluntarily modified by Russia in the treaty with the United States, April 17,
1824, and in the treaty with Great Britain, February Hi, 1823, 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 suitpose, declare
the Behring Sea to be mare clausnm. It did declare that the waters, to the extent of
100 miles from the shores, w^ere reserved for the subjects of the Russian Empire. Of
course many hundred miles, east and west and north and soutii, were thus inten-
tionally left by Russia for the whale fishery and for lishing, open and free to tlie
world, of which other nations took large advantage. Perhaps in ])ursuing 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-niile re,striction perforned 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 jirincipal, almost the sole
employment of the Russian American Company. It forineil 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
B S, PT XII 8
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fl
a
'I
H
^
1
1
u
1
114
ORAL ARGUMENT OK JAMEH C. CARTER, ESQ.
in tlio dinpatch to which I ntn r«))lyiUK. Whiln. therefore, tberu may have been •
\nT((e aiuoiint of lawful whaiitiK anil fiMhiiiK i» the KeliriiiK •'^ea, the taking of furs
by IbreigiierH was always and under all cirtiuniatanceH illicit.
He there assertH tlmt it was not the purpose of the Ukase of 1821 to
establisli a mare clausttm, as was by so many supposed, but that its
object was to preserve for the exclusive use and enjoyment by Kussian
subjects the benefits of the fur trade, the 100 uiile exchision being au
iDstrumentality for that purj)ose.
The next important note in the porrespondence is that of August 2,
1890, by Lord Salisbury; but that again is confined to this discussion of
Kussian rights; and there is nothing, 1 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 Hussian ])reten8ions and
the extent to which they had been acquiesced in. To that Mr. Blaine
rejoins in a letter beginning on page 2<J.'i, 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 acipiisition by Kussiaand a transmis-
sion to the United States of a sovereign dominion over Bering Sea.
That observation I have already alluded to, but 1 return to it again.
It is found on page 2()3.
The United States contends that the Beliring Soa was not iiient' ed, or even
referred to, in either treaty, and was in no sense included ni the rase "PaclHc
Ocean". If (ireat ISritain can maintain her position that the Beii 'j^ Sea at the
time of the treaties with RuHsia of 1824 and 1825 was included in the lacific Ocean,
the Government of the United States has no wcIl-Kniunded complaint against her.
If, on the other hand, this Government can prove beyond all doubt that the Behring
Sea, at the date of the treaties, was understood by the three sij^uatoryl'owers to be
a separate body of water, and was not included in the ])hra8e " Pacilic Ocean", then
the American case against Great Britain is complete an<l 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 1H21 , 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.
1 assume that he intended by that observation that if Great Britain
succeeded in making out her case, the United States, so far as that ques-
tion Kas 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, «o/«r as that questiomca'S concerned, would \\a,\e
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 Uebring Sea be pronounced mare claiiimm, are without foundation. The Govern-
ment has ut'ver claimed it and never desired it. It expressly disavows it. At the
8a'i.e time the United States does not lack abundant authority, according to the
ablest exponents of international law, for holding asmall section of the Behring Sea
for the ]>roteftion of the t'ur-deals. Controlling a comparatively restricted area of
waterfortbatonespecific purpose is byno means the equivalent of declaring the sea,
or any part tliereof, mareclaiisum. ^ or is it by any means so serious au obstruction
as Great Britain assumed to make in the South Atlantic, nor so groundless an intor-
I'erence 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 poet-
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
115
more
) again
ds tbat
Govern -
At the
to thu
ing Seii
area of
the Hea,
bnictiou
n inter-
irity to-
g poet-
non«<ni(*nt which an exiuiiination of h'^al nuthoritioH from Cliiiiui to Pliillinioje and
Kent woiihl involve. Ho tin<lMliis own vi"\vt« well exprt'Hseil i),v Mr. FlittljtH, our lute
Diininter to KiiKliintl, when, aftrr failing to aiciire ii JiiHt iirriniKuintMit with (ireat
liritiiin toiicliiii^ tho neiil liHiu^rieH, lie wrote the following; in Ilia flosiiig coinniuui-
cation to lii.s own (iovurunicnt, St'pienihcr VJ, IHSN:
"Much Iciirninf; liiiH Ucon expeniuMl upon tlieiliHcusNion of the iihHtrnct <|nP8tion of
the right of mare ilniisnnt. I do not conceive it to lie :i|i, licnlile to the prcHent cuue.
" Here in a vulnuiile liHlicry, anil a large ivnd, if iiropcrly niaiiiigcil, pcrinanent
induHtry, the (iropcrty of the nations on wlioHe NJiureH it iHcarricil on. It is ]iropoNe(l
by the iMilony of a toieign nation, in ilellancc of the Joint remonstrance of all the
couutrieH interested, to destroy this liusineHH by the indiscriminate sliiiighter and
extcrniinatiiiii of the animals in i|iiestion, in the open nciuhlioriiig bcm, during the
period of gestation, when the common dictates of hiiniiinity ought to prott* t tlicm,
were there no interest at all involved. ,\iid it is Huggesled that we are preveiited
from defending ourselves against such ilcpredations because the sea at a certain dia-
tauce from the coast is free.
"The same line of argument would take under its protection )>iraoy and the slave
trade when pro.secnted in the o|ien sea, or would Justify one nation in destroying the
commerce of another by placing diingcroiis olistnictions 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 im]iunity, and against which every sea is mure clnumim ; and the right
of self-defense as to person and itrojicrtv jirevails there as fully as elsewhere. H'tho
fish upon Canadian coasts could he destroyed by scattering ]ioisoii in the open sea
adjacent with sonic small profit to those engaged in it, would Canada, upon the Just
principles of international law, be held defenseless in such acasef Yet that process
would be no more destructive, inhuman, and wanton than this.
" If precedents are . anting for a defense so necessary and so proper, it is because
precedents for such a course of conduct are likewise iinknowu. 'the best interna-
tional law has »■ sen from precedents that have been established when the Just occa-
sion lor tliein itros(>, undeterred by the discussion of abstract and iuadeijuate rules."
Lord 8iili.sbnry in ii note subsecjuent to this, on Febrnary 21st, 1891,
ajiain attempted to impute to Mr. lilaine a reliance, and a sole reliance,
o'l liussian pretcntionn, instead of npon a i)rln('iple of property rijjht.
'liiat will be found on page li!»0. Ho says in a paragraph near the bot-
tom of the i)age:
The laim of the United States to prevent the exercise of the seal fishery by other
nutioiitriu Hchring Sea rests now exclusively tinon the interest wliich hy purchase
they ixissoss in a ukase issued liy the Kmperor Alexander I, in the year IHIJI, which
|iroliiliits foreign vessels from aiiproaching within 1(K) Italian miles of tliecnasts and
islands then belonging to K'lissia in Hehring ^t^a. It is not, as I nnderstniid, con-
tended that the Uiissiaii (ioviTiinient, at thotinieof the issue of this ukase, possessed
any inherent right to enforce such a prohihilidn, or acijuired by the act of issuing it
any claims over the open sea beyond thet rritorial limit of 3 miles which they%oiild
not otherwise liiive jios.scKseil. lint it is said that this prohiliition, worthless in itself,
ac(|iiircd validity and force against the liritish Government because that (ioverii-
inent i-an be shown to have accepted its ]ii'oviHions. The ukase was a mere usurpa-
tion; but it is said tbat it was converted into a valid international law, as against
theKritishGovernineut, by the admission of that Government itself.
Now Lord Salisbury could not, I think, fairly, Avith the correspond-
ence of Mr. lilaine before hint, which 1 have already read, impute to
the United States Government a sole reliance upon a jurisdiction
asserted to have been acquired byliussia; but. he attenijjts to do it
there, and is very sharply corrected hv Mr. Blaine in a subsequent not«!
of April 14, 18!)1, which will be found ok page 21)5. I read from page 21)8:
In the ojiiiiion 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 o)>en sea, u])on the contention that the interests of the seal
fisheries give to the Inited States Government any right for that purpose which,
according to internMtional law, it would not otherwise possess."
The (Jovemment 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 islaiKls upon which the seals breed, that the habit of the seals in regularly
resorting thither and rearing their young thereon, that their going o.ut from the
islands in search of food aud regularly returning thereto, and all the facts and inci-
1
I i,
116
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
dents of tlicir reliitioii to tlie island, give to the United States a property interest
tlieiriii; tliat this property interest was claiinod and exorcised by Russia during the
whole period of its sovcreij^nty over the laixl and waters of Alaska; that England
reeoKiii/ed this ])rop<'rty interest so far as recognition is implied by abstaining from
all interference with it during tl;'j whole period of Russia's ownership of Alaska,
and (luring the lirst nineteen years of the sovereignty of the United States. It is
yet to b(! d<!terinined whether the lawless intrusion of Canadian vessels in 1886 and
Hubsoiiuent years has changed the law and equity of the case theretofore pre. ailing.
And witli that extract I t'onclude uiy observations concerning the
attitude, taken by the United States. From first to last it was based
ui)()n llie assertion of a property interest in these seals, strengthened
indeed by tlie alle;;ation tluit that property interest had been origi-
nally held by Russia, and while held by liussia had been recognized by
both Great fuitain and the United States, and that the possession of
this property interest by the United States gave it the right — a right
which every Cioverinnent has — to protect its property wherever that
l)rn]>erty has the right to be, and by such measures as are necessary
for the i)urpose ')f such proteetion.
iS'ow then we nave out of this case, as far as I am capable of putting
out of it, any aigunient as to whether Russia ever acquired a sovereign
jurisdiction over any part of Bering Sea, or whether she ever trans-
nutted to the United States any sovereign jurisdiction over any i)art
of it. We make no assertion of that character. We put no part of
our case upon any such assertion. We do not suppose that any such
assertion of jurisdiction was ever made by Russia. But do I nu'an that
this mutter 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; r do not mean that. These pretensions
do have a ])lace, and an important place, which I am now about, so far
as 1 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 1 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 Enghind rocog-
nizcil this jjrojierty interest so far as recognition is implied, by abstaining from all
interlereiiee with it during the whole j)eriod of Russia's ownership of Alaska, and
during the lirst niiuitecu years of the sovereignty of the I'nited States.
Now, I am g<fiug to deal with this subject but very briefly. The ques-
tion niiiinly turns n])on what rights Bussia did originally assume in
Bering Sea, ami whether those rights were ever displaced or modified
by the sul)se(imMit treaties between lier and the United States and
between her and (ireat Uritain in lS2t and 1S2.">, and if disi)laced, or
modiiied, to wliat extent. 1 am going to deal, I say very briefly, with
thiit argument, and for two reasons: First, as I hiive already intimated,
I do not conceive that it plays any vital part whatever in this contro-
versy, iiiid theref(tre I should do injustice to the general argiimentof the
(lucstion if 1 should assigii a disproportionate space to it; and I could
not go tlirough with the argument and refer to all the diplomatic com-
munications and occasional acts of the various countries winch have a
bearing upon it without emph)ying several days in the discussion. I
have m ithe'' time nor strength for that and am not going into it. If I
did do it, 1 coiUd 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 inevital»le — it will be a task which the
learned aibitrators will lind it necessary to go through with — to exam-
ine this diplomatic correspondence and to examine the grounds takeu
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
117
c coin-
lave a
on. I
If I
r inci-
by the American Government in thevnrious comninnications npon this
i^nbject by Mr. Blaine. I conld not lessen tiiat labor niati'rially by any
lengthy discnssion now. Nevertiicless I must deal with it very brietly.
I have endeaA'ored to describe in the sketch with which 1 befjan this
part of my argument, the early dealings on the part of Enssia 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 n'soiirces so far as any
nation could appropriate them: that such appropriation was Just and in
accordance with natur.al law There was enough only for one great
nation, and the world would be best served by such ex(;lusive ai)i)ropria-
tion. We do not assert an apjtropriation of the products of the sea
unconnected with the shores. Wc assert no such appro])riation on the
part of Kussia. Russia asserted the right to protect her trade and
industries on the shores by the exercise of self defensive authority
ixpon the high seas and practically by excluding other nations from a
belt of water extending 100 miles iiom the coasts and islands. She
declared this to be, not an assunipvion of sovereignty, or mareeltnistim,
or attempt to establish mare clansumj 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 (ireat
Britain and the United States, severally, .and Russia.
;Now, except so far as the ett'ect 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 supj)ort of it were modilied or
displaced by these subsequent treaties. In other words it involves the
interpretation of the language and eli'ect of these subsecpient treaties.
Now as the interpretation of these documents is not entirely easy nnon
the face of iheni, it will be proper to place ourselves in the possession
of certain information in regard to the matters covered by the treaties,
and especiail" in regard to the notice which the American and British
Governments took of the Ukase when it was first ])ronmlgated.
The two sections of the Ukase v/hicli it is necessary to read will be
found on page 10 of the first volume of our Api)en(lix:
Sec. 1.— Tbe purmiits of conimeice, wlialing, and fishery, aiid of all other iiidiiHtry
on all islands, ports, and gulfs includinfj,- the wboleof the iiorlhwest coast of Aiiieiii-ii,
beginning from BohrinjJi'M Straits lo the 'tl^ of nortlKU'ii l;ititnde, also from the Aleu-
tian Islands to tlie (Msteru foant of .'^ilicria. as well as ahmg the Kurile Islands from
Hehring a Straits to the Soutli Cape of the Island of Uruj), viz, to the 45'^ 50' northern
latitude, is exclusively granted to Russian 8uli.je<ts.
Skc. 2, — It is therefore prohibited to all foreign vessels not only to land on the
coasts and islands belonging to Russia as stated above, but also to approach them
within less than a hundred Italian miles. The transgressor's vessel is subject to
confiscation along with the whole cargo.
Now it would seem that when the Government of Great Britain
received information of that Ukase they applied to so eminent an
authority as Lord Stowell to learn what the effect of it was, and he writes
to Lord Melville on the2(}thof December. 1821. 1 am reading from the
Api)eudix to the Case of Great Britain, volume 2, page 12:
y
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118
ORAL ARGUMENT OF JAMES C. C:ARTER, ESQ.
Lord StoiKcU to Lord MelriUe.
Gkafton Strket, London, December S(>, 18,?1.
My I>RAn Lord: I liavo perused tlicae psipers, ainl it .appenrs to me to be luiHsife to
pro('('(!(l to any controversial diocimsion of tlic! ])r((i)osed h'ejjfiilationH, till it is shown
that tliey issue fioni a competent authority foimded npon aii acknowledu'ed title of
territorial and exclusive possession of the ])ortions of the jilobe to which they relate.
1 am myself too slijjhtly acquainted with the faits rcf^ardinj^ such ])(issession (how
oritrinally acfpiired and how 8ubse(|Mently enjoyed) to be enabled to say that npon
ni:ilisi)nted principles such a possession exists. It is perfectly dear from these
Ke<;i;lations that it has not hitherto been exclusive in the extent in which it is now
claimed; for they are i'ramed for the very purpose of putting au end to foreijjn
intercourses of traftic therein, which they denominate illicit but which they admit
existed de facto.
The territories claimed are of dift'erent species — islands— portions of the continent —
and larjje portions of the sea ad.joiiiiii};.
1 know too little of the history of their connection with either islands or continents
to say with confidence that such a possession lins in this case been acquired. I con-
tent myself with remarking that such possession does not apjiear in the oi>inion and
J)racti(^e of States to He founded exactly upon the same ])rincii>les in tlie cases of
islands and continents. In that of islands, discovery alone has usually been held
sntilicient to constitute a title. Not so in the case of continents. ]n the case of
the South American Continent the Spaniards and Portuguese resorted to grants from
an authority which in that age was universally respected, and continued in res])ect
till snbse(|nent i)oss(ssion had confirmed their title. But I think that it has not been
generally held, and cannot be maintained that the mere discovery of a const gives
the right to the excilusive possession of a whole extensive continent to which it
belongs, and less 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 jiurposes. I am too ignorant of par-
ticular facts to say how far such principles are .jus'ly 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 questicm resjiecting the foundation of such
an authority, and thinking that that question must be first disposed of, I content
myself with observing npon the Regulations themselves that they are carried to an
extent that appears very unmeasured and insupportable.
I have, etc., Stowell.
I read that letter for the purpose of showing two thiiiji-s: First, the
views of a distinguished jurist of tliat daj' u])on tlie (|uestion of what
rijilit 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 sliowing that l^ord Stowell giithered at once
from the face of these reguhitions tliat tiiey were not designed as
assuming sovereign jurisdiction over tlie sea, but were defensive regu-
lations for the Y»urpose of protecting ct)niinerce and the industries of a
region over which it was assumed tliat liussia had sovereign control;
and he, as you will i^erceive, rests the conclusion as to the validity
of these regulations upon the completeness and perl'ectnessof 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; becaise 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
liassage from Sir Robert Phillimore's book, which I wish to rel'er to, is
contained on page 39 of our Argument. He says (Int. Law, vol. 1,
pp. 251), 260) :
A similar settlement was founded by the British and Russian Fur Companies in
Noith America.
The chief portion of the Oregon Territory is valuable solely for the fur-bearing
aninuils which it ])rodnces. Vnrious establishments in different parts of this t<'rri-
tory organized a system for securing the preservation of these animals, and exercised
for these purposes a control over the native population. This was riglitly contended
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
119
to be the only exercise of proprietary right of which these particular rfi<i;ions wcro at
that time subtceptible, ami to mark that a beiujicial use was made of the whole terri-
tory by the occupauts.
That seems to me very renaonable and to tend very much to support
the observations that I made at a former period of this argument to
the eftect that tliese Northern regions, yielding only one jn-oduct, 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 i)urpose. 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 [Jnited 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.
IS
1,
Foreign Office, January 18, 18'i2.
The undersiffned 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 issiiod
by his Imperial Majesty the Emperor of all the Russias, and bearing date the 4lh
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.
Tliis document, containing Regulations of groat extent and importance, both in its
territorial and maritime bearings, has been considered with the utmost attention, iuid
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 i>",endship and alliance; and having been
referred for the report of those hij^h 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 80 del icate 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 ac^iuaint Count liieven that it being the King's
constant desire to respect, and cause to be res])ected 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 princii>le8 of claim laid down therein, viz., an exclusive sovereignty alleged
to belong to Russia over the territories therein described, as also the exclusive riglit
of navigating and trading within the nn\ritinie limits therein set forth, His Hritannic
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
hithertosubsistedon those coasts, and in those seas, can be deemed to be illicit, or tliat
the ships of friendly Powers, even supposing an untiualilied sovereignty was proved
to appertain to the Imperial Crown in these; vast and very imperfectly occupied ter-
ritories conld 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 hia 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 comi)laints
against this Ukase of a twofold character. First, its assumption of
territorial sovereignty over these shores, and, next, the attempt to
liJ
,'i '■
m
p^
120
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
ill
I'lr
exclude citizens of other nations from 100 miles on the sea, mentioning
both the ])()ints. That is tlie lirst British protest. The Anieri<'an pro-
test will be foiiiul on pa{>e I'.VJ of the lirst volume of the Api)eiidix to
the Case of the United States. It seems that the Ukase was trans-
mitted on the 11th of February, 182!i, by Mr. Poletiea, 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. Poletiea:
Air. Jdams to M. dc Pohtica,
Dei'art.ment of State, Washington, February S5, 1822.
Sir: I havo the honor of recfiviiiu; your note on the 11th instant, inclosing a
printed coiiy of the rejjinlations adojttfd hy tlie Huswian American C'oniiiany, and
sanctioned l)y His Imperial Miijcsty, rehiting to tlie commerce of foieifiners in the
waters )>ordering on the establishments of that company upon the northwest coast
of America.
I am directed by the Fresident of the United States to inform you that be has
seen with surprise, in tliis eilict, the assertion of a territorial claim on tlie part of
Russia, extendinj^ lo i\w. iifty-iirst degree of north latitude on this continent, and a
regulatirm interdicting to all counuercial vessels otlier than Russian, upon tin; penalty
of seizure and contisc-ation, the approach upon the high seas within 100 Italian
miles of the shores to wbicli that claim is made to a])ply. The relations of the United
States with His Im])erial MaJ(^sty have always been of the most friendly character;
and it is the earnest desire of this (iovernment to preserve thenj in that state. It
was expected, before any act wliicli should define the boundary between the terri-
tories of tlie IJnited States and Russia ou this continent, that the same would have
been arranged by treaty lietwcen the parties. 'J'o exclude the vessels of our citi/ens
frcuii the shore, bcyoiul the oidinary distance to which the territorial jurisdiction
extends, has excited still greater surprise.
This ordinance atl'ects 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 natiouG, 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 Poletiea, in a note which is found on pajje
1.33, 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 tliiit this Ukase is not an attempt to make the Bering Sea, or
any i)art of it, mare clunsum, but that it is adopted as a measure of
prevention to i)rotect the industries of Russia and her commerce on
that sea.
Sir Charles Russell. We think that answer of de Poletiea is very
important, and we do not admit that that is a correct summary of it.
Mr. Carter. Do you prefer that it should be read in full.
Russell. Just as you please about that.
I am quite willing that it should be read now.
Russell. Oh no!
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 joiutly con-
ducted. Thiit ai)pears in the coriespondence here, and I will not take
time to read the various letters in which it apj)ears for the purpose of
showing it; but it does sufficiently api)ear. Great Britain and the
United States acted in conjunction, and each was consequently fully
ap])rised of the views of the other. That common action continued
for a considerable ])eriod of time in the negotiations and was finally
broken oft' — broken off as I apprehend, and as I think is evident from
Sir Chart.es
Mr. Carter.
Sir Charles
Mr. Carter.
ORAL ARGUMENT OP JAMKS C. CARTER, ESQ.
121
the correspoiulence, because the United States Govermnent hiul taken
the attitude in tiie course of tlie corre.si)ondence that it wouhl not
recognize any furtlier establishments of Euroi)ean powers on the >!orth
American continent — a suj^sjestion of a doctrine subsequently known
among statesmen as the jNlonroe do<!trine. Mr. Monroe was then Pres-
ident of the United States. In consequence of that suggestion Great
Britain withdrew from her Joint action with the United States in tiie
negotiation, but as I rather assume, and as I think is very natural and
indeed evident, ke])t herself ai)i)rised of the course of the negotiations
between Russia and the United States.
The President. Was there a formal declaration that they would
cea.se aciting jointly?
j\Ir. Cauter. There was a formal declaration that they would cease
a<!ting 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. 1 cannot lay my hand
at present upon the correspondence showing the grounds upon which
Great Britain withdrew^ her particii)ation.
The President. Perhaps it is not material to your argument.
Mr. Carter. Here is a note that perliaps throws light upon it.
This is an extract from a letter from Mr. liush, the American Minister
in Lon<lou to his own Government dated January 9, 1824. I read from
the American State Papers, volume 5, p. 403.
Mr. Justice Harlan. Probably what you are looking for is on page
48 of volume 2 of the British Case, a letter froni Mr. Canning to Sir
Charles Bagot. There is some allusion there to it.
Mr. Carter. I will read this letter to which 1 refer:
ii.
W
Hf
Extract of a letter from Mr. Hush, dated London, January 9, 1824.
or
of
on
I liavo lieretolbro written to yon on tlie Gtli and 22iid of Docombor, and have now
to inlbrni you that from interviews which I have had with Mr. Canniiir; since the
present month set in, I lind that ho will di-cline sendinji instructions to Sir (Jharles
Ra^ot to proceed jointly with our Government and that of Russia in the negotiation
relative to the Northwest coast of America; but that ho will be merely inlbrnie<l
that it is now the intention of Great Britain to i)r(iceed separately.
Mr. Cannin<>; intimated to me that to ]n'occed separately was the original intention
of tliis (government, to which etfect Sir (.'harlcs ]{aj;'ot had beeninstructeil, and n(!ver
to any other; and that Sir Charles had only ])ansed under your suffi^estions to him
of its beiiifi; the desire of our Govc^rnnient tliat the three powers should move in
concert at St. Petershnr"- upon this 8ul)Ject.
The resumption of its ori<;'inal conrs(! by this Government has arisen chiefly from
the ]»rinei])le which our Government has adopted, of not cousi<lerinjj; the American
continents as sulyects for future colonization by any of the European powers — a
principle to which Great liriti.-in does not accedes
I have informed the Secretary of State of tlie above intention of this Government.
It will produce no alteration in my endeavors to obtain in negotiation here a settle-
ment of the points as between the United States and (ireat liritain, respecting the
Northwest coast, in numner as my iustrnctions lay tlnun down to me.
And Mr. Canning's version of the same affair will be found in the
place just indi<;ate(i by Mr. Justice Harlan. Mr. Canning says in a
note to Sir Charles Bagot:
These reasons had induced us to liesitatf; very nr.ich as to the expediency of
acceding to the projxjsition of the I'nited States for a common negotiation between
the three Powers; when the arrival of the Si)eeeh of the Rresidtuit of the United
I'-
122
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
StiitoH nt the ojicninp; of the Conj^rfss supplied another reason at onoo derisive in
ilsclt', and NiisccptiUle tit' being Htatcd to Mr. Rush with more explicitneHH than thoHo
whicli I have now detail(>d to your exeellenoy, 1 refer to the principle deelared in
that Hpeecli, which prohibits any fnrther attempt by European Powers at eoloniza-
tiou in America.
So tliat the original action in common between Great Britain and the
United States and tlie subsequent breaking up of tliat common action
by Great Britain all appear to be quite evident. They are imi)ortant
however to my present argument only as showing that Great Britain
and the United States, acting as they did originally in common, were
at the start entirely well acquainted with the views of each other.
Now the next piece of evidence which it is important to notice in
order to ascertain the views with which the two parties approached
this negotiation — for that- is what I am now ui)on— is to be found in
the instructions issued to the negotiators. I call attention to the
instructions from the United States Government which will be found
in a letter from JMr. John Quincy Adams to Mr. Minister Middleton on
page 141, Vol. I, Appendix to the Case of the United States. 1 think
1 ought to read the whole of that letter.
tt . . ■
Mr. Adams to Mr. Middleton.
No. 16.] Department of State, Washington, July SS, 1S:23.
Sm: I have the honor of inclosinjj; herewith copies of a note from Haron de Tiiyll,
the Hiissiaii minister, recently arriviul, jiroposinj^, on the part of His Majesty the
Euiitercv of Russia, that a ]»ower should be transmitted to yon to enter upon a
negotiiiiiion with the ministers of liis (iovcMiiment coni'erninfj; the differences whicli
have arisen from the Imperal ukase of 4lh (16th) September, 1821, relative to the
northwest coast of America, and of the answer from this department acceding to
this proposal. A full power is accordingly inclosed, and you will consider this
letter as communicating to you the President's instructions for the conduct of the
negotiation.
From the tenor of the ukase, the pretentions of the Imperial Government extend
to an exclusive territorial jurisdiction from the forty-liftli degree of north latitude,
on the Asiatic coast, to the latitude of lilty-one nortli ox. the western coast of the
American continent; and they assume the right of interdicting the navigation and
the tishery of all other nations to the extent of 100 miles from the whole of that
coast.
The United States can admit no part of these claims. Their right of navigation
and of fishing is perfect, and has been in constant exercise from the earliest times,
after the i)ea(!e of 1783, throughout the whole extent of the Southern Ocean, subject
only to the ordinary exceptions and exclusions of the territorial Jurisdictions, which,
so far as Kn.ssian rights are conciuned, 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 DejJartnK'nt contained no dis-
cussion of the principles or of the facts upon which he attempted the Justification of
the Ini])erial ukase. This was purposely avoided on our part, under the expectation
that the Imjierial Government could not fail, upon a review of the measure, to
revoke it altogether. It ilid, however, excite much public animadversion in this
country, as the ukase itself had already done in England. I inclose herewith the
North Anu'ricau Keview for October, 18L'2, 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 ntimber of the Quarterly Review, the article
upon liieutenant 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-
testetl 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 discovert) can constitute a
foundation of right, the ])ai)er8 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 Sjniin.
There is, however, no part of the globe where the mere fact of discovery could be
held to give weaker ciaiius than on the northwest coa«t. "The great sinuosity,"
says Humboldt, "formed by the coast between the fifty-tiftb and sixtieth parallels
of latitude embraces discoveries made by Gali, Hehring and Tchivikoff, Quadra,
Cook, La Perouse, Malespier, aud Vancouver. No European nation lias yet formed
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
123
(Ub-
on of
iition
?, to
this
the
370)
n ill
tide
icnn
con-
an cstablinhinent upon the immense extent of coast from Cape Afendocino to the
fifty-uiuth decree of hititude. Beyond that limit the KiiHsian lactdries cuimiieiuts
most of which are scattered and distant from each otiier, like the factories astah-
lished by- the Enrop«^an nations for the last three centuries on the coast of Africa.
Most of tiiese little Kiissian colonies connnnnicate with each other only by sea, and
the new denominations of Russian America, or Russian ])osHcssion8 in the new ci>n-
tinent, must not lead us to believe that the coast of Behrin^j's Bay, the ])oniiisula of
Alaska, or the country of the Ischu^atschi have become Rnssian provinvcH in tin;
same sense given to the word when speaking of the Spanish i)rovince8 of .Sonora or
Now Biscay." (Hunilioldt's New Spain. Vol. II, 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 i barter, in 1799,
he gave it the e.rclii8ire ponncsaion of the northwest coast of America, which belonged
to Russia, from the tilty-tilth degree of north hititude to Behring Strait.
In his letter of 2d of April, IH22, he says that the charter of the Knssian Ameri-
can Company, in 1799, was merely conceding to them a part of tiie sovereignty, or,
rathvr, cerlahi excltmre pririlegcs of commcrve.
This is the most correct view of the subject. The Emperor Panl granted to the
Russian American Comi)atiy certain exclusive privileges of commerce— cxclusivo
with reference to other Rnssian subjects; but Russia had never before ai^xfrtcd a
right of sovereignty over any part of the North American continent, and in 1799 the
people of the United States had lieen at least for twelve years in the constant and
nninterrnptod enjoyment of a proiitaltle trade with the natives of that very ('oast, of
which the ukase of the Emperor Panl could not deprive them.
It was in the same year, 1799, that the Knssian settlement at Sitka was first made,
and it was destroyed in 1802 by the natives of the country. There were, it seems, at
the time of its destruction, three American seamen who perished with the rest, and
a new settlement at the same place was made in 1804.
In 1808 Count Romanzoff, being then Minister of Foreign Aftairs and of rommcrco,
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 clandeitine, by which means the savage wlanders, in exihange for otter skins, had
been furnished with tirearnis and powder, with which they had destroyed a Russian
fort, with the loss of several lives. He expressly (iisclaimed, however, any disjiosi-
tiou on the i)art of Russia to abridge this traffic of the citizens of the Ignited States,
but proposed a convention by which it should be carried on crclusivclij witli 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, chargd 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 (Mtizcns
with the natives of the northwest coast of America as unlaivful 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 thepi it will bo
seen that the Russian Government at that time explicitly declined the assertion of
any boundary line upon the northwest coast, and that the pro])osal of measures for cim-
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 imi)ression was erroneous; that the traffic of
the citizens of the United States with the natives of the northwest const was neitiicr
clandestine, nor unlawful, nor irregular: that it had been enjoyed many years before
the Russian American (lompany existed, and that it interfered with no lawful right
or claim of Russia.
This trade has been shared also by the English, French, and Portuguese. In the
jirosecution of it the English settlement of Nootka Soiiud was made, which occa-
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 month
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. Bv the treaty
of the 22d of February, 1819, with Spain, the United States acquired all the rights
; It
I- ill
.i '
124
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
ifij
''^'
of Spain north of latitude ■t2'^; and by tlio tliird arti<^lo of tl»i> convention between
the United States and (iroat Hritain of tlie 2()tli of Oitolter, IMIS, it was a>i;roeil that
any country tliat ini^ht be clainied by eitlier party on tiio noitiiwcHt eoastof America,
westward of tlie Stony Mountains, wlionld, io<;etlier with itH liarl)or8, bays, and creeks,
and the. navigation of all rivers tvithin the same, be free and open for the term of
ten years from that date to the vessels, citizens, an<l snljjcM'ts of the two powers,
without prejudice to the claims of oillier i>arty or of any other State.
Yon are anthorized to propose an article of the same import for a term of ten years
from tlie Hignatiire of a joint convention between the United States, Great Britain,
and ]{ussia.
The ri;i{ht of the United States from the forty-second to the forty-ninth parallel of
latitude on the I'acitic Ocean we consider as nuciucstionable, being fonnded, first,
on tlie acquisition, by the treaty of Fel)ruary 22, 1819, of all the rights of Spain;
second, by the discovery of the Coluuil)ia Uiver, lirst from sea, at its mouth, and
tlien by land, by Lewis and Clarke; and third, by the settlement at its mot th 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 eon-
tinnity of tlieir possessions from the Atlantic to the Paeilic Ocean, bnt as it offers
their inhabitants the means of esta))lishing hereafter water cot Munications from
the one to the other.
It is not conceivable that any possession npon the continent of North America
should be of use or itnportance to Russia for any other purpose than that of tralHo
with the natives. This was, in fact, tlie indncement to tiie formation of the Rnssian-
American Company and to tlie charter granted them by the Emjieror Paul, it was
the indncement to the ukase of the Emperor Alexander. By ottering free and eqnal
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 ci>ncede much more than
we o))tain. It is not to be doubted that, long before the expiration of that time,
onr settlement at the mouth of the Columbia River will become so considerable as to
otter iicans of nseful 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 witliin which the Emperor Paul liad granted exclusive nrivileges to
the Russian American Conijiany, that is to say, latitude 55'-',
If the Russian Goveriuneut aj)i)rohend serious inconvenience from the illicit traflic
of foreigners with their settle. iients on the northwest coast, it may be etl'ectnally
guarded against by stipulations similar to tlio.se, a draft of which is herewith sub-
joined, and to which you are authorized, on tlie jiart of th(! United States, to agree.
As tlie British ambassador at St. Petersl)urg is authorized and instructed to nego-
tiate likewise upon this subject, it may be proper to adjust tlie interests and claims
of the three powers by a joint convention. Your full power is prepared accordingly.
Instructions conformable to these will lie forwarded to Mr. Rush, at London, with
authority to commnnicate with the British Government in relation to this interest
and to correspond with you concerning it, with a view to the maintenance of the
rights of the United States.
I am, etc., John Quincy Adams.
HeNKY AllDDLETON,
Envoy Extraordinary and Minister Plenipotcntiarii
of the United States, St. Petersburg,
[Inclosnre.]
Draft of treaty between the United States and Russia.
'.f
ii:
Art. I. In order to strengthen the bonds of friendship and to preserve in future a
])erfect harmony and good understanding between the contracting parties, it is agreed
that their respective citizens and subjec^ts 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 pnritose of carrying on their commerce with the natives of the country; subject,
nevertheless to the restrictions and provisions specified in the two following articles.
AuT. II. To the end that the navigation and fishery of the citizens and sul>Jects or
the contracting parties, respectively, in the Pacific Ocean or in the South Seas, may
not be made a jirctext 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 aettlement of the United States on the said northwest coast.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
125
Te a
reed
ther
tutu
for
ect,
ilea.
8 or
ing
ist.
Aht. III. It is agreed that no settleinont sliall be made hereaft«r on the northwest
loast of America by citizens of tiie L'uittMl states or under their authority, nonli,
nor by Hnssiiin subJectH, or under the authority of UuHsia, south of the til'ty-llfth
deji;ree of north hititiide.
(For other inchisures, see Amerieau State Papers, Foreign Relations, vol. v, pp.
436-438.)
Now tlie leiirnetl Aibitrators will perceive from that letter, which is
very instructive in reference to the views of the United States Govern-
inent at that time, tliat the only serious and practical objection on the
part of the United tStatea to whatever pretensions were set up by
Russia in this Ukase of ltS21, 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 1791), down to
51 degrees of North latitude; and, second, to her exclusion from the
Northwest coast of Uiuted States citizens enj,'ased in trade; in other
words, the exclusion of them from the benefits of tlie 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. Adtims.
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 (JO degrees of north latitude, down to the mouth
of the Columbia River, had been for years in the enjoyment of various
powers, of Russia, of tlie United States, of Great Britain, of Spain iind
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
l)articii)ation in that trade was entirely well founded, as Mr. Ada- is
insisted. Now, that had reference to this coast along which I run i:ie
pointer [indicating on the map], and htid no reference at all to Bering
Sea, or to any of the islands of Bering Sea, or to the coast of Siberia —
regions which, so far as respected tlieir 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 Jiritain and the United States were of
course in dis])Ute as to whom this coast here (iinlicating on map)
belonged to; and it was not until the year 184G that that dispute was
settled by the adoption of the present boundary.
The PiiEsiDKNT. On i)age 142 of the report of Mr. Adams from
which you have just read, they S])eak of the 59th degree north as being
the claim of the United States. I suppose it is a misprint.
Mr. Cartkk. No, that is the point up to which the United States
claimed. It would be where my pointer now is, up to the southern
bcmndary of Alaska, a line whicli would take the whole of the peninsula.
That was a claim whi(!h made this territory in part a disputed one.
The case which Mr. Adams made here by these instructions was this:
"Spain is the first tliscoverer up to the 6(ith degree of North latitude.
We have her rights transferred to us. Theretbre by first discovery,
we have a title to latitude 00. In the next place we have always
engaged in trade on that coast; have visited it continually ever since
we were ati indepeiK'ent nation, and such rights as we have springing
out of tra<le 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 his
instructions to the Anuuican negotiator of the Treaty, that practically
•m
1'
■i
1
ih
iH|
m
126
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
the whole iniportiuiee of the dispute lay in the possession of that
Northwest coast. That is all there wavS about it. There was indeed a
sentimental assertion — I call it a sentimental one— that no further
acijuisition, no further settlements by Eur<)pean jxiwers upon the Amer-
ican contin(>nt, 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 deforces which would give her exclusive iwssessiou of a very consid-
erable i)art of this disputed region. Practically the whole of the
interests that were affected by this dispute centred upon that North-
west coast trade. And 1 might as well here strengthen that point.
IMr. 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 inforniati(m about this region. He rel'ers 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 tiie Quarterly
Review. It will be found ou page 12 of the first volume of our
appendix:
Let us examine, however, what claim Russia can reasouably set up to the terri-
tory in (|U()Htioii. 'J'o tho two shoios ol" Ik'iinK Hon we admit she would have an
undouhtetl claim, on tho score of priority of discovorj, that ou the side of Asia
having been visited by Deshnow in 1G48, and that of America visited by Boring in
1741, as far down as tlio l.ititudo 5P and the jieakod mountain, since generally
known by the name of Cajio I'airweather; 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 GOth 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 i)erfectly familiar to him, with its history,
and with the trade whi(;h had arisen there. It is also ou page 12:
Wo have no doubt but Russian fur-hunters formed establislimenta, at au early
perioil, on the Aleutian Islaiuls and neighboring coast of the continent; but we are
oiiually certain that it can bo clearly demonstrated that no settlement was made
eastward of Bering Bay till the one at Norfolk Sound (Sitka), in 1709. The state-
nu'uts of Cook, Vancouver, Mears (Mirs), I'ortlock, and La Perouse prove, what we
readily admit, that previous to 1786 the Russians had settlements on the island of
Kadiak and in Cook's River; but we shall take leave to use the same authorities to
estaolish the fact that none of these settlements extended so far east as iiuriug Bay.
[The Tribunal here took a recess.]
Mr. Cakter. Mr. President, the diplomatic papers, and especially
the instructions from Secretary John ()iiincy 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 tho Ukase of 1821 were
substantially confiued to the unwarranted asvsertion 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 ])arallel of north latitude, which
includes the whole of Ahiska 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. CARTEK, ESCi.
127
the assortion of maritime doiiiiMion contained in the Ukase of 1821,
wliile tiie IJniti'd States niadea formal obje(5tion to it, it did not niaivo
any considerable tignre in the distMission. It was nndcr thoKc cinnim-
stances and witli those views on the part of the United States and on
tlie i)art of linssia tliat tlie Treaty of liSlJt was conchided, atid tlie
qnestion now is as to the interpretation of tliat Treaty. Its provisions
will be found on pafje 30, of the first volume of the Appendix to the
American Case (quoting) :
Akt. I. It is agreed that, in any part of tho Great Ocean, commonly called the
I'acilic. Ocean, or South 8ea, therc.si>eilive citizenHorHubJrctM oftheliijjh contract in>?
PowcrH Hhall be neither disturbed nor rcHtrained, either in navigation or in lishin^,
or in the power of resorting to the coasts,' upon points which may not already liave
been occupied, for the purpose of tradinjj; with tlie natives, saving always the restric-
tions and conditions determined by tlu^ following articles.
AUT. II. With a view of preventing the rights of navigation and of lishing exer-
cised iipou the Great Ocean by the citizens and subjects of the high eontra<!ting
Powers from becoming the pretext for an illicit trade, it is agreed that the citizens
of the United States sliall not resort to any ])oint where tliere is a Russian establish-
ment, without the permission of the governor or commander; and that, reiiitrocally,
the subjects of Hus.sia shall not resort, without permission, to any estal)lishinent of
the United States upon the Northwest coast.
That is the important i)art of the Treaty of 1824, so far as the pres-
ent discussion is concerned; and the question is, whether the terms
"Paci tic Ocean" or "South Sea" include Bering Sea or exclude it. It
is insisted on the part of Great Britain that they inclnde it; it is insisted
ou the part of the United States that they do not; anil we have to
inquire which is the more reasonable interju'etatiou under the circum-
stances of the case, and in view of till the lights whicli are thrown by
the evidence concerning the understaiuling of the parties. Now, it is
apparent at the start that tliat article of the Treaty admits of either
interpretation upon its face. " Tacitic Ocean" or "South Sea" may
include the whole of Bering Sea, as is insisted upon by (Ireat Britain;
and, on the other hand, it may exchule it, as is insisted upon by the
United States. What is the consecpience of accepting the interpreta-
tion insisted upon by Great Britain? It would be that the T'nited
States is, by the terms of that Treaty, permitted to land on all the
coasts of the Pacilic Ocean, including Bering Sea, under the dominion
of Kussia, including the whole of the coast of Siberia, the coast of
Alaska and the islands in the Bering Sea: that is the conseiiuence of
this interpretation. On the other hand, if the interpretation insisted
upon bj' the United States is (correct, "Pacilic Ocean" only applies to
that part of the Pacitic Ocean which is south of the Aleutian Islands,
and which, therefore, washes oidy this disputed territory along here
(pointing to the ma])). Its application on the other side of the Pacitic,
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, aiul 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 linssia 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 supi)ose that Kussia 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 snpjwse
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
ff
128
ORAL ARGUMENT OF JAMKS C. CARTER, ESQ.
:il
face, and that we flhould not accept it, unless tlie Ian;j:iiaf,'e in such as
to conijiel tliat acceptance. Now, wlicn we n'tnin to tlie lan^uap' ot
the Treaty, we at once llnd reason for the belief that tlie term "Pacific
Ocean" was not intended to cover su<'h a hroiid expanse. The hingua^e
is: " It is afjreed that in iiny parr of tiie grent Ocean. . . commonly called
tlie Pacific Ocean or South Sea." Those words ''coninntnly called" are
not destitute of sif>niticanc»'; they were not iiiseited lieie without a
])iirpose. Did the I'acilUr Ocean, as s]ioken of in that age, include
iU'ring Sea? What do we mean by "coninionly called"? Does it
inijiort the meaning assigned to it by distinjiuislied geographers? Is
that what is meant by "commonly called"? Ho, 1 imagine not. The
expression means that which in called the South racihc Ocean or South
Sea by <'onimon men engaged in Ashing or navigation; and I appre-
hend that, if seamen, navigators, masters of vessels, eominercial tlrms
engaged in business and resorting to that sea, were asked whether the
expression in(;luded IJering Sea or not, they would say it did n(>*'
Therefore, I think it Wiis intended by the use of the words "commonly
called," to linjit the term "I'acilic Ocean" to what was understood by
it according to common usiige among the men of that time who were
in the habit of using that term in their business coiuterns. Now let us
look at the maps of that <lay, for there are a multitude of them referred
to in the Cases of the contemling parties. As to the nmjority of these
nuips, 1 think I may say nearly all of them — I do not wish to nuike a
positive assertion, for 1 have not nnide an iiccurate study of them — but
as to the vast maj«n"ity of them, liering Sea is represented as a sea by
itself, sometimes called ISeriiig Sea, sometimes the Northern Ocean,
sometimes the Sea of Ivamehatka; l)ut generally rei)resented upon all
the mai)s of the time as a sea seiiarate and by itself. I cannot help
thinking, therelore, that if it was the intention of these parties, of
these (Joverjimeiits, to embrace by the terms of this Treaty the coasts
antl islands of the IJering Sea, they would have used sonie language
exin-essly and une(iuivoc;illy indicating this, and that we should not
inter that iiussia made a surrender without (ton>-ideration of her un-
questioned rights along the shores of the whole of Bering Sea, unless
language is found in the Treaty unecjuivocally importing that fact. So
much as to the face of the Treaty itself, and it seems to me that the
argument is very strong — 1 will not say conclusive, Ibr this is a subject
which admits of argument <tn b'lih sides — that the phrase ''Ocean
comnmnly called the I'acilic Occiir «r 3outh Sea" was, in the minds of
those two agreeing (lovernments, limited to the I'acitic Ocean south of
Alaska and the Aleutiiin Island^, ^iow I come to a iit)int which seems
to me quite conclusive of this <|t!tv>ition — the learned Arbitrators will
bear in mind that I am discussing the meaning of these terms in the
American Treaty. After this Treaty had been finally con(!luded, but
before it had been ratified, its terms came to the knowledge of the
liussian American Compiiny which had by grants from Kussia the
exclusive right to all the industries in ijcring 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 Kussian industries in Bering Sea were, to son;e
extent, thrown open to the citizens of the United States; and in con-
se(iuence of that apprehension it made a connnunication to its own
Government; and 1 call attention to a letter from the Minister of
Finance of the Kussian Government to the Board of Administration
of the Russian-American Company answering that communication,
which appears an page loS of the Counter Case of the United States.
This letter was written from St. Petersburg, September 4th, 1824.
OIJAI, AUCil'MKNT OF JAMKS C. CAKTKU. KS(;.
12!)
I
The comnmiiit'iitiiiii <>{' .lmi(< \'J, IM'I. iin.-cntril to im- liy tlic tliiiTtinM (if the coiu-
piiiiy, ciiiitiiitiiiiu; lliiir it'iiiaikM on tli<' i iiiiki'iiiiiiicin wliirli niii.v irMilt tVnni t\u\
riitiliratioii ot' tlir cihim'iiIIoii I'oiirliiili'il Ajiiil .'>, ISL'I, liciwcoii our (iiiii't ami tlio
N'lii'tli Aiiii'rii'aii |{i |inlil;<'. \\ uh ('iiiiniiiiiiirati'd liy iiir at that tiiiir in tlic i>t'i;;iii:il to
tlm Illilli^<t)'t' ill rliaiui' of tln' Miiii'-tiy i>\ ruitijiii ADaiis. Having' now rccii vrd
I'roiii hi III till' inl'iii nial inn tliat tin- n roi ilcil |iriiti>r<i| nl tlif (H'oco-iliiij^s ol' tlif h|m rial
coiiiiiiitti'*' wliii'li t'xaiiiini'il tliis snli.jt'i't liy iin|ii'i iai iiiilii' lias ifcriMtl tlii< liiii ami
uiitirt> a|)]ir<>\ al ol' Ili^ liii|i<>iial .Majrsty, I tliiiiK it iii'ii'SHary In riiminiiiiirati' tu tliu
liotinl of ailiiiiiiiHiiMiiiin of ilir U'liN^ian AiiMiiraii Cnmpaiiy, for tlirir infoi'iiiatinn,
('o|(i(>s of tlic aliov I'-nit'iitiniii'il ('(nnmiini) al ion nf ( (iiint Ncn^oIioiIc to nir, anil al.so
tlio j)ror('r(lin;;>i of tin- romiiiil tri' of .1 illy L'l, IM'l, iniloMid in it, tnjictlu'i' with a
draft of a coinmniiii atiiiii to mr, iiri'pari'd liy His I'.srtlli'ni'y : wlii'di was also rt'ad
in the alioM'-naiiii'il cominilti'r and was left iiiisi;;nt'<l alttM' it hail hern ;;ivi'n liiial
I'lMmiili'i'.'itioii.
From llirsr dniiimriits tlir hoard will nit that, for thr avoidanrf of all iiiisnnd^r-
Htaiidiii;^s in tlif lAt'iiitinii of thr ahoM-inriitiKiird rniiv riit ion, and in rniifoi iiiity
with tluMlesirt' of thr conipany, thr miTssary instriii'l imis haw already hrrii ;;ivi'ii
to JJaroii 'I'liyll, our niinistir at NVasliiii'.;lon, to the clVrrt that Hit' uorl hwcsinrii
coimt of Ainrrii'ii, aloii;; tin- cxtrnl of which, hy thr proviHions of tlii' convention,
free trading and liHliinu an- pciiiiittcd siilijcitH of tin- North Aint-ricun iStut<'t», uxteiidd
from r)4^ W northwards to Vukntat (Ht'iiiij,'"s) Hay.
Lieut, (ii'ii. Kankimn,
Minister of FiiitDnr.
Y. DlllHIII.MX,
J)iti'vti)r.
Thiit show.** the iiiterprctiition pliicod by tlie (lovcrniiu'iit of Hiissia
.'>t tliiit tiiiu upon tlic pliiasc used in tlio Troitty. TIk' lettiu- <'iiclo.sos
the ahstfjiet of a eomnmiiiciition from Coimt Ne.sselrode to the IMiiii.ster
of Kiiiaiice. Count Ne.sscli'otle had imich to do witli the negotiations
and t'onchision of the Treaty, Now, that eomimmication is (piite a h)!!*;"
one, aii<l I shall not read the whole of it; but I eall attention to the
eon<'ludin<;" passaj;es oi it at paj^e ir»8:
15iit Ht'cinji, ou till' otlitT liand, that thi^ restrict ion.s st itoil in the opiiiiini of the
Ministta' ot' I' inanrtt and of Statu ('oiincilor l)i'iisliinin | >it an end to all tho roin-
]ilaiuts of tlic AniiTican ('oinpanv, tho majority of fin- members of the eonimitteo
have foiiud it iieeessary to iiivesti,ij,ite the nature of those restrictions, in order to
UHcertain how far it is jiossilih' to insist upon them without prejudice to tlui rifi;ht.s
and advanta;;es ai'eriiintJ fioni the treaty id' A])ril 5-17.
Ah the proposed restrictions refer to two chief poiuts lying under different paral-
lels of latitude, nainelv :
First. To Yakntat (Beriiifi's) I'.ay, under parallel .JD^ 30'.
Second. To Cross Mayor Sound (Cross Sound) iind(T ])arallel .")7'-' — the Aniericiin
Coin]>any desires that siilijeels of the I'liileil States may' not he permitted to hunt or
lish in those bays; therefore, the majority of the ineuihersof tlu; eommittee resolve:
That, as rejjards the lirst id' these points (Iterinj^'s liay), it lies in a latitude wher^
the rii{lits of liussia have never formed a subject <d' dispute, ami that this important
circumstance permits us to include it in tlie j,;cnoral declaration coiucrninK the
Al<Mitiau Islands and the other northern idaces.
That, as regards the. second (Cross Sound), however, as it lies under the fifty-
seventh degree of north latitude, and conseiiueiitly within the lindts id' those islands
and regions to which lJussiii"s right of soM-reignty has been disputed, it is imprac-
ticable to apply the same rule or to base the claim, of whiidi it must be the subject,
on any other satisfactory ])roof.
That apart from this, in order to e.Khanst ail the iiieasiireH .showing the care, of the
GoviTnnient of His Im^icrial Majesty for the interests of the I'lissian American Com-
]iany, it is still jiossible to instiint (ien. Tuyll to use every ellort to jiersuade the
Washington Cabinet that, by a<'(;e]iting this iestriction relating to Cross Sound, it
will iireveut all un[deasant collisions between the subjects of the two jiowers. That
Geu. Tuyll must not, howover, make this last proposition until he is convinced that
it will })e accepted, and that it will not deter the Government of the United Statt s
from ratifying the treaty of April o-l".
This resolution was unanimously adopted by all the members of the committee.
St. Tetersburg, July 21, W2i.
Ni'.s.sici.noDK.
(J. L. Kankhin.
Si'KltANSIvY.
Dili Slll.MN.
POLETICA.
%
fi
if
1
B S, PT XII-
-9
130
ORAL ARGUMKNT OF JAMES C. CARTER, ESQ.
Sir CiiAiJLKS KrssK].!.. Tliis is the first orciisioii on which a docw-
ment has been rcforrod to, tli<' correctness of wiiich is iminigned. It is
well that I slioiiid call tlie attention of the Tril)niial at once to it. My
friend has read "tojicther with a dralt of coiiininnications to him pre-
])ared by llis I'^xcelleiicy, which was also read by th(^ above named."
Tliat is an inter])olated itassaj-e and is not in the original. Oh! I beg
yonri)ardon; 1 misnnderstood; those are omitted in the translation,
b»it are in the original. What my Iriend read was not the amended
translation.
JMr. Jnstice Haklan. At the top of the page from which Mr. Carter
read we have the words "amended translation."
Mr. Cartkr, That communication on the part of the officers of the
Enssian Government intimates the interpretation of the Treaty which
I have suggested to the Tribunal — that, so far as regards places North
of the <!(>th ])arallel of latitude, or thereabouts, they are not regions
which were ever the subject of dispute, and therefore the exclusive
right of Kussia to them is not affected by the Treaty; but that, so far
as relates to lands South of that latitude, they l>eh)ng to regions which
were subject to dispute and therefore come under its provisions. And
I ought also to have stated to the Arbitrators, as another ground for
sui)i)()rting that interpretation of the Treaty which 1 had insisted upon,
that the imi)ortant articles of the Treaty, articles 11, III and IV, all
refer, manifestly and i)lainly, to that NorthweHtcrn coast, which is
another reason for limiting the meaning of the ])hrase"racittc Ocean "
to that ]»art of the I'acilic Ocean which washes that coast. We see
from the ]»apers which 1 have read, and which emanated from the Itus-
siaii Government, the interi)retati(>n which that Government put upon
this teiin.
1 read also paragraph 7, on page 157, Proceedings of the Conference
held June 1, 1824:
Tliat as th« sovcrciguty of Riissisi ovi^r the coasts of Siliorin, and the Aleutian
Islands lias loiii; bfcn admitted l»y all the jtowers, it follows that the said coasts and
islands tannot Ije ullntled to in the articles ot tlie said treaty, whieli refers only to the
disjHited territory on tlie Nortliwest coast of America and to the adjacent islands;
that, even sniiposiiifi the i-oiitrary, Russia has estaldislied jierinanent setthMiient. not
only on tlie coast of Siberia, but also on the Aleutian group of islands; hence Amer-
ican subjects could not by virtue of the second article of tlio treaty of April 5-17.,
land at tlie maritime. |)laees t'l.ie nor carry on sealing and tishiug without the per-
mission of our coiiiinandants or governors. Moreover, tlie coasts of Siberia and the
Aleutian islands an; not washed by the Southern Sea, of which alone mention ia nnide
in the lirst article oi the treaty, but by the Northern Dcean and the Seas of Kam-
chatka and Okotsk, which form no part of the Southern Sea on any known map or
any geography.
The Pk'ksident. Those are the proceedings of the Russi.an officials;
there is nothing international about then».
Mr. Carter. >'(»t at all; but the learned Arbitrators will perceive
from the ])aper which 1 am ab(mt to read that those very views were
brought to the attention of the Amenciui Government and acquiesced
in, and that too before the ratification of the Treaty. It will be renuun-
bered that in the documents from which I have Just read allusion was
made to instructicns given to Baron Tuvd to bring this subject to the
attention of the American Government. Mr. Adams w^as at that time
Secretary of State, and he records in his Diary of December G, 1824,
the fad of an interview between him and Baron Tuyll. This occurs at
page 27G, volume I, of the American Appendix (quoting):
nth, Momlmj. — Haron Tuyl, the liussian Minister, wrote me a note requesting an
immediate interview, in c()iise(|uence of instructions roctdved yesterday from his
Court. He came, and after intimating that lie was under bouio embarrasBmeut in
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
131
rceive
were
lesced
linem-
\\ was
to tlie
tune
1824,
irs at
ling an
T)in liis
lieut iu
executing his instructions, said that the Russian-American Company, "pon learning
the purport of the Northwest Coast convention concluded last June by Mr. Middle-
to!', wf.re extremely dissatisfied {a jet4 de hauls cria), and, by means of their influence,
had i)rt'vailed upon his (Jovernnient to send liini those instruciions upon two points.
One was that lie sliould deliver, upon the excliajige of the ratifications of the con-
vention, an explanatory note purporting that tlie Russian (iovernment did not under-
ataiid tluit tlie convention would give liberty to the citizens of the United States to
tra'de on tlie coast of Siberia and the Aleutian Islands. The other was to propose a
nioditication of the convention, by whicli our vessels should be prohibited from trad-
ing on the Northwest Coast north of latitu<le SY'^. With regard to the former of
these points ho left with me a minute in writing.
Now tuiniiifj to page 277, 1 continue the extract from Mr. Adams
Diary (quoting):
I told Baron Tuyl that wo 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-
ventiovi could bo made no otherwise than by a now convention, and that the con-
struction of the convention as concluded belonged to otlier departments of the
(Jovernment, for which tbo Executive had no authority to stipulate I added
that the convention would be submitted immeili.ately to the Senate; that if anything
atl'ecting its construction, or, still more, modifying its meatiing, were to be presented
on the part of tlio Russian Government before or at the exchange of the ratifications,
it must lie laiU 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 tliere were, who might wish to defeat tlie 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 tlie 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, ho 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 hji an interest not very frkndhi to the good understanding heticeen the
United States and Jimsia. 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 teas wisest not to
put such fancies into their heads. At least the Imperial Government might wait to see
tlie operation of the convention before taking any further stop, and 7 teas confident
they would hear no complaint resulting from it. If they should, then would be the time
for adjusting the construction or negotiating a modification of the convention.
Now, the Explanatory Note which the Barou contemplated forward-
ing is the following:
Explanatory note to b'' ,)resented to the Governmont of the United States at the
time i)f the exchange of rp .iticaticns, with a view to removing with more certainty
all oecnsion foi- lul've (1i.srnssioTia; by means of which note it will be seen that the
Alcutinn Islands, ihe coasts of Si lieria, and the liussian Possessions in general on the
Northwest Coast of America to 59^ SO' of north latitude are positively excepted from
the liliert.y of hunting, linliing, and commerce stipulated in favor of citizens of the
Unitecl Stiitcs for ten > ears.
This seciiis to .<' only a natural consequence of the stipulations agreed upon, for
the ciiasiH of Jihcria are washed by tlie Sea of Okhotsk, the Sea of Kanisehatka, and
the Icy Sea, a».'/ not by the South Sea n- intioned in tlie first article of the convention
of April 5-17 [if^MJ. The Aleutian Islands are also washed by the Sea of Kam-
■atl<a, or Northcn Ocean.
^ It is not the in cntion of lin.tsia to impede the free navigation of the Pacific Ocean.
She would be sntislied with euusing to lie recognized, as \v(dl understood and placed
lievonil all manner of doulit, the principle that lieyoiul ')[)-> 'AO' no foreign vessel can
apidoaih her coasts and her islands, nor (isa noi'hunt within the distance of two
marine leiigucs. This will not prevent the leception of foreign vessels which have
lieen damaged or lieaten by storm.
Tiiat was the Note which was to be prcscxited. Now I read a further
extract from Mr. Adams's diary:
I'lie Baron said that 'best ideas had occurred to himself; that he hud made thia
a|)plieati()n in jiursua e oi his instructions, but he was aware of the distribution
of pow.'is in our ("onstitution and of the inconipetency of tlie Executive to adjust
such (questions. He would therefore wait for the exchange of the ratifications with-
m
■ii
Ji
132
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
out pioseiitinn his note, and reserve for future coiisideratinii whctlier to ]ireseiit it
Hliortly iU'terwiirds or to iiiforiii IiIh Court of \vli:it lie lias done and ask their liirtlier
iustnii'tioiis upon wliat lie .shall di'linitely do on the suliject.
Sir Charles Kussell. Tlieie is a i)iiss!i<;oioll()\viii<j- tliat — the pas-
sage is this (reading) :
lie thercCore nnincsted nie to consider wliat had now i)assed between ns as if' it
had not taken i>Iai'e ('non avenn'),to which I readily assented, assnrinj; him. as I
had done heretoi'ore, that the President had tin; highest ])(TS('iial <-onlldence in him,
and in his exeitions to foster the harmony between the two eonutries. 1 reiuirted.
immediately to the i'resident the sniislance of I his conversation, and he con<'urred
in the propriety i>t' the liaron's linal determin;ition.
Mr. (3ARTKK. At tlie c;h)se of pajje 277 tlie.se extracts that I have
read are einbraeed in a letter of Mr. Blaine, and after giving them, he
says this:
As Haron Tnyl snrrendered his opinionH to the sn])erior Jndiinieut of Mr. Adaii s,
the ratilications of the treaty were exclianjfed on the lltli liay of .January, and on
the followinij; day tlie treaty was tbrmally pro(daimed. A lbitni};ht later, on Jan-
uary 25, 1825, ISaron 'i'n,\ 1, Ibllowing tlie iiistructious of his (iovernment, tiled Ids
note in the Department of .State.
Sir Charles Kussell. Is there any evidenceol that?
Mr. Carter. Yes, we have it; thitt is a copy of the Note as it stan. .<
on the files of the J)ei)artnient. Is'ow that is a pretty important trans-
action bearing upon the inter])retation of the Tnaty. What is tiie sub-
stance of this transaction? It means that members of the Hnssian-
American Com])any had an ai)prehension that it might be contended
that s()me of their exc^lnsive rights were thrown open to citizens of the
United States, and they reniorstrated to tlieir Government. The view
whi(;h tlic Russian Government took in regard to that remonstrance
api»ears to have been that the ijrovisions of the treiity did not affect
Bering Sea iind tlie exclusive rights which the Company had there,
and tliey instiucted their Minister in Washington to make representa-
tions to the United States Government. l>iiron Tuyll states to the
American Secretary the appreiiensions on the ])art of the liussian
Government, and he exhibits to him a note which he jiroiiosed to deliver
and which asserted as the jiroper interpretation of llu^ Treaty thac the
lihrase " Pacilic Ocean*' does not inchtde Bering Sesi. Wh.it is the
reply of Mr. A(i;inis to the Minister of ivassiic? Tiiat that inter[>reta-
tion was ill-founded? Does he contest it at all? No; nothing of the
sort, lie says that the question of the in.ter])retation of that Treaty
must, according to American law, be determined by another Depart-
ment of the (iovernment — the Judicial Dci>artment, it being ii jutlicial
((uestion. He does not state what his own interpretiition is, for, if he
did, it would have to go before the Senate, and it might raises embar-
rassing (pu'stions there, lie says in substance "'the point is of no
practical consecpience. for our jieople will never go tiiere; there is no
danger of that; and il" you say anything about it, the etfect would be
to put fancies into tlieir h(>ads whitdi otherwise the\' would not enter-
tain. The best thing is to say nof hing about it, and let this Treaty be
ratified as it stands. If, after that, your Government insists upon
doing anything further, let them do it. But my answer to that note,
if you lodge it with me, must be tiiat it raises a (piestion as to tiie
interpretation of the Treaty — a question wiiich must be settled by the
Judicial J)epartinent of the American Government.'" Now I <'iinn<it
lielp tliinking that Mr. Adams and tiie Aniericiiu G(*ve;'ntiu-nt w<;uld
be o|»en to tlie charge '-f bad faitii if they had iv.pde smh an .1; wer
as that, an<l should aftcrwiirds assert any dilferenV im<-rri«'tali-)n of
the Treaty than that which Baron Tiiyll suggested, i do not think
i0^.
.^^^A
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
133
traiis-
le siib-
issiiin-
of the
e view
;ti'iiii(;e
t alt'ect
there,
sentix-
to the
ssiaii
liver
t the
< the
»reta-
)t' the
reaty
part-
(licial
it' he
mbar-
of no
1 is 110
lid be
ciitor-
itybe
upon
note,
) tiie
y the
lIllKit
.viiiihl
■ wer
>ii oi'
think
-El*
thiit we could relieve Mi'. Adiiins or the Aiiierieaii (Toverninent froui
tlie imputation of l»ad laith if they then believed that the Tieaty bore
a dilVerent eonstructioii than that and did not frankly say so to P>aron
Tuyll. i>aron Tuyll took the advice and acted npcm it. He said: "I
will not lile this note until the Treaty is ratified, and even then Twill
not unless my (iovernnient tell me to do so." He waited, and his (iov-
ernment directed him to tile his note, and he did — he filed a note which
ex])licitly stated liis interpretation. That note was never aimirered.
Now, if the .Vmericati Government was ever at any time to dispute tiie
interpretation thus i)ut upcm the Treaty, then was th'> fjjme for them to
do it, and if they did not do it then, tliey would be precluded after-
wards from doinj;- so. 1 cannot help thinking', therefore, that this
transactit)!!, snbse(iuent to the actual c(»nclusi(»n of the Treaty, but
l)efore its ratification, is conclusive as to th.^ int«'ri)n'ration of the
Treaty su{j'.J4('sted by the liussian (jovernment and now insisted upon
by the United States.
The IVkesident. Don't you think the silence of ^Ir. Adams was
rather siuniticant? Was it not rather unusual not to answer ii written
conuiiunicationf
^Ir. Cautj'.h. It was sijjnificant in the way I have stated. It said to
IJaron Tuyll: "It is nor, the i>rovince of the Executive ]»art of the
(iovernnient of which I am a representative to put a construction upon
this Treaty. If 1 should fjive you a construction, it would not be bind-
in<j: lor at some other time it miftiit liecome a (|Uestion, aiid the
Suiueme ('ouit of the United States would be alone competent to
decide it." Ibit he fioes on to encourajje him to take no stc]) to settle
tlie])oint; and that, 1 must confess, would be astonisliinn' on the pait
of ]\Ir. Adams, if he thought that at any time the American Govern-
ment would set up a difl'erent inteipretalion.
The l*in;.sii)i;NT. Did not the silence of Mr. Adams leave it upon
technical j^rounds?
Mr. Cautjok. Yes. lUit it is a (juestion of candor anu>n<;' the repre-
sentatives of two jiieat nations aj)i)roaehin};' each other in that Wi:y.
.'Ir. Adams did not put iiimself U]ion tliis jiround and say: "You
must not iiiteri)ret my lanj;uaj>e, or my silence, beyond what it may
iliicctly import."' He did not put I>aron Tuyll ujion his jiiiard at all.
'i'.wt attitude was not consistent with ji'ood faith on the part of Mr.
^^idaiiis, if hi' did not feel satislied with the suggested interpretation
juid thought that a dillerent one would at any time be set uji.
So Tuucli Ibrtiic American Treaty. IJut that does not interpret the
British Treaty, and it is to that that the attention of the Tiilmnal is
more immediately directed. The languaj^e of this latter, althou;;h not
])re(is('ly. is substantially, the same; and in the first Article of that
Treaty, found on pai^e.'l!' of the first voluineof the American Appendix —
."\Ir. .lustiee IlAia.AX. The word "Grand" should ajijiear before
"Ocean."
.Mr. Cautku. 1 have no other evidence of what the text should be
tJian tlu^ .American original; it is as it is here, for aiiyht I know.
-Mr. , I u.*-- 1 ice ilAiJLAN. Tlieie was a Tnaty in lOnj^lish?
Mr. Cjrteii. Yes. (cpiotiny):
It is n^rrctMl tliat, in any part of tlui Great Ocemi. «(iiiiiiii>iil.v riillt'd tlio I'ncifio
Occiii, ov Sdutii Si-a. tlic ri'.siii'<>ti\c citi/.t-ns or siilijccts of tln' liiLili ciintractinj;
]*((\vi'rs shull ttc iitillicr (list iirlx'd nor rcstvaintid, cither in iiiivi<;ation or in li>liiiiu;,
or III t!i(! power of rcsdrtiii^^ to tlio consts, upon ])oinls whicli may not aircaiiy liavo
liccn (x'ciipitMl, lor Ili« piirpiisc of Iradini; with the natives, saving always tlie
restrictions ami coudiuous deterniiued by llio foliowiug articles.
nil
II
■r. ii
l
i
134
OKAL ARGUMENT OF JAMES C. CARTER, ESQ.
Whether the word " ( Iriiiid " l)eh)n{is tljere before tlie woi'd "Ocean "
or not, is of no conse(|uen<-e ; I assume that the same tiling was intended
by the Articles in each Treaty. Tiiat was the Treaty negotiated between
Great Britain and Kussia. Now, applying the same method of inter-
pretation which 1 liavo to that of the United States, let me say that we
know, of course, the vie^Vs 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 Kussian Government must have approached
the negotiatione with Great lii-itain as it approached those with the
Government of the United States, In reference to the views of Great
Britain, it does not follow that slie had the same purposes as animated
the United States Government. V jv purposes may have been widely
different from those of the Unite^l States negotiators, or those of the
United States Government; but we have this lact, that the negotiations
were carried oi; '< tijointly. and, presumably, the views of the two Gov-
ernments were : j tially alike. But, so far as the instructions of
Great Britain to ht gotiators are concerned, I must freely and fully
admit that, instead ul being mainly coutincd, 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 i)retension
of one hundred miles over the sea. The negotiators representing Great
Britain were instructed that that was a point which they must specially
and, iirimarily, attend to, and that it was of more consequence than
the disputed question of tenitory on the North -West Coast. In that
respect there was a difference. But how was this point .arranged °? Mr.
George Canning inst' acts Mr. Stratford Canning at St. Petersburg
how to i)roceed on that point. At page 200 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 nuinnor in wliich he was to conduct the negotiations
(quoting) :
The correspondence whicli bas already passed upon this subject has been submitted
to your perusal. And I inclose you a co]),v.
1. Of the "projet" wliich Sir t'liarlcs ISugot was authorized to conclude and sign
some ninnths ago, and which we hud every reason to expect would have been entirely
satisfactory to the Russian Government.
2. Of a "contre-projet" drawn up by the Russian plenijtotentiaries, and presented
to Sir Charles Bagot at their last meeting before Sir Charles Bagot's departure from
St. Petersburg.
3. < )f a dis})atch from Count Nesselrode, accompanying the trausmissiou of the
"contre-projet" to Count Lie von.
Now further on it said:
The whole negotiation grows out of the ukase of 1821.
So entirely and absolutely true is this jtroposition, that the settlement of the
limits of th(^ respective ])osseHsions of (ireat Britain and Russia on the northwest
coast of America was proposed by us only as ai mode of facilitating the adjustment
of the ditterence arising from the ukase, by enabling the court of Russia, under
cover of the more conipreheiisive arrangements, to withdraw, with less appearance
of concession, the otteusive iiretfn.sinns of that edict.
It is com])aratively inilitl'ereiit to us wlictlu.'r we hasten or postpone all questions
resi)ecting tlie limits of territorial jjossession on the continent of America, but the
pretensions of the Ru.ssian ukase of iS21 to exclusive dominion over the Pacific
could uot continue longer nnrejiealcd without comiielliug us to take some measure
of ])ul)lic and eii'ectual remonstiame against it.
You will therefore take care, in the lirst instance, to repress any attempt to give
this change tr) the charnctcrol the negotiation, and will declare witiiont reserve that
the ]>oint to which alone the solicitude <tf the British Government and the jealousy
of the British nation may attat h any great im[)ortance is the doing away (in a mau-
ner as little disagreeable to RusbIu as possible), of the ali'ect of the ukase of 1821,
I
ORAL ARGUMKNT OF JAMES C. CARTER, KSQ.
135
ig, in
of the
of the
•thwest
stiiient
under
iiirauce
cstioiis
l)iit tlie
Pacitic
easuie
to give
ve that
salousy
a luau-
1821.
That sets forth what the piivticuhir chaiiictor ol" their foinphiiiit
against the Ukase was. He tlien speaivs of the mode in which the
negotiation shonkl be conducted. And, linally, he says — and 1 read
now from i»age L'Ol :
The ightof the subjeets of His Majesty to navigatis freely in the Paellie, can not
be held as matter of indulgence from any power. Having once been publicly ([Ues-
tioned, it niii.st be ])ul)liely acknowledged.
We do not desire that any distinct refi-rence slionid bo made to the ukasn of ISL'l,
but we do feel it necessary that the statement of our riglit should be clear and iiosi-
tive, and that it slioiild stand forth- in the convention in the place which i)roper]y
belongs to it as a )>]ain and substantive stipulation, und not be brought in as an
incidental conseciuence of other arrangements to which we attach comparatively
little ini]tortance.
This stipulation stands in the front of the convention concluded between Russia
and the I'nited (States of America, and we see no reason why, upon similar clainis,
we should not obtain exactly the likes satisfaction.
For reasons of tiu' same nature! we can not consent that the liberty of navigation
through Herinu's Straits should lie stated in the treaty as a boon froni 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 wcu-Jd, jtrotest.
Xo sjiecitication 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 tiiemselves as
secured in the right of navigating Hehring Straits ;ind 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 nnciuestionable as not to be worth recording.
Perhaps the simidest course, alter all, will be to substitute, for ail that ]>art of
the "I'rojet" and "Contre-Projef which relates to nuiritime rights, and to naviga-
tion, the lirst 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 stii)ulation 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 nu)st desirable should exist between three powers whose
interests come no nearly in contact with each other in a part of the globe in which
no other power is eone'erned.
This, therefore, is what I am to instruct yon 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
(xroat Britain in St. Petersburg.
^Ir. Justice ITablan. Let me interrupt you just a moment. I call
your attention to the iipptirent omission in the English translation of
I lie treaty between Jvussia and (ireat Britain. The English transla-
tion in the British case accords with tiie American translation.
Mr. C'AUTKK. Very likely it may; 1 do not know.
Lord ILlNNEN. The word *< great" is omitted.
Sir (Jhaules Russell. Yes, the word "great" is omitted, too.
Mr. -lustice Uarlan. 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 ti tnuislation of tli»^ 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 lelt out
there.
Mr. Carter. There is one in Russian, too.
Mr. l*iiELPS. There were duplicate drafts, one in French and one in
English.
Sir (-'iiARLES Russell. There was one in English and one iu
French.
Mr. Foster. They were both originals.
i
!.:
i*
136
ORAL AKGI;MI:NT of .IAMKS C. (^AKTI.H, KS(/.
(Ill,
!l.
Mr. (3AKTKU. Is tliere iuiytliinj;' more tlmt the U'anied Arbitrator
wished to ask '.
Mr. Justice llAULAN. No.
Mr. Caim'ek. I re>»niiie, then. The Mritisli Miiiisterof Foreifjii AfVairs
instructs the BritisJi Ambassador in St. Petersbiir.i'', who is iiej;()tiatinj?
the treaty, to carry out the object which (Ireat IJiitaiu lias in view, ot
displacing' the assumption of Jfussian dominion in Bering' rtea; but to
carry it out, if lie can, by adoi)ting the lirst two articles of the Ameri-
can treaty, thvis avoiding any discussion with theGovei ■ . .;., " 'Lussia
in respect to its pretension in the L'kase of 1821. That was done; and
there appears to have been no further discussion in reference to it. j\ow,
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 aj'reement which you have
made with the United States as a settlement. Whatever that agree-
ment is, we are satisfied to take it for ourselves. We have seen it, we
are satislied with it, and wx' are satisfied to take it f(U" ourselves". In
thus accei)ting the ]»rovisioiis of tiie American treaty, 1 respectfully
submit to this Tribunal that they must accept the interpretation of the
American treaty with IJussia, as it was understood by both powers, and
what that interpretation was, 1 think I have already show ii to this Ixtdy.
The PiiEsiDKNT. J)o you not think Mr. Canning uut i stood it c her-
wise than you have explained it to us; for Mr. (Janningsays that when
right of free navigation lias been questioned, it must be asserted? I do
not remember the words exactly, lie says that, though.
Mr. Cautkr. Yes; very exidicitly.
The riiESiDENT. lie says: "If you give us the text which maybe
given to the United States, Ave will be satisfied" ; and, he seems to iniply,
that the right of JUitisli ships to navigate freely in the Bering Sea and
across the Bering Straits is granted in the text of the American treaty.
Mr. Cabtei{. So he thought, undoubtedly.
The I'EESiDENT. T Jiiiik he thought so. "
Mr. Oaktek. Me thought so, and he told the British Minister in St.
Petersburg so; but he did not tell the Kiissian Government that.
The Phi;sident. He made a mistake, in your opinion.
Mr. Carter. I do not say he made a mistake, lie made a mistake
in one thing, ile may not have gained what he had ])rominently 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
tliat file American treaty was subjecL to the interpret.ition which the
American and Itussian Governments put upon it, it would not answer his
purjiose; l>ut not having communicaled that t ) the Russian Govern-
ment, and a settlement liaving been ])ro})oscd with the Bussian Gov-
ernment l)y ado])tiiig the first two articles of the American treaty, with-
out making any interpretation of them, adojitiiig them as they stood, I
submit tliat in ailoptiiig that agreement between the United States and
Bussia, the interpretation of the United States and Kussia was adojited
with it; and if 1 have succeeded in showing that ac(!Oiding to the
interpretation of the United States and liussia the Pacific Ocean or
South Sea did not include the Uering Sea under the American Treaty,
it no more included it in the British treaty.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
137
(lid
Imade
lieaty
|)os('d
li tlie
'!• his
Ivoni-
Jdov-
Iwitli-
)()d, I
and
|)l)ted
the
(Ml or
iaty,
Lor«l H ANN F.N. Would you say that, 'Sir. ('arter, if tlu» corros])oii(l(Mi('o,
betwM'en the Eiij^lish (lovenimeut and the lius.siaii (ioveiiiinent .slio\v»'(l
jidirteventinteriiretatiou had been jtutupon tlie words "PHcilic Ocean"?
JVIr. (Jai{Tj:u. I beg your Lordsliip'.s jtaidon.
Lord IIannk.x. I say, would you say that the Enjjlish Governuieut
was bound by tlie interpretation whieli you say liad been ])ut upon it
by the liussian and tlie American Governments, if tiie <!orre8pondence
between the lOnylish (lovernment and the Itussian Government showed
that they understood the words "• I'acitic Ocean" in a ditferent sense?
Mr. Cautku. No, my Lord, 1 would not.
Lord Hannkn. You would not in that event?
Mr. Gauteb. No; 1 would not. If there were evidence here tending
to show that the Russian Government and the Govi-rnment of Great
IJritain in the course of that neji'otiatiou ])ut an interpretation upon
these very terms different from what Itussiaand the United States had
put upon them, then 1 should say that they nuist be interpreted accord-
ing to the significance in which they were understood uy the Govern-
ments of Great iiritain and Jiussia: but I have not myself discovered
any evidence here tending to show that the terms of the Treaty were
understood by the Jiussian Government and the Government of Great
Britain difl'en'ntly from what they were understood by the Government
of the United States and the Government of liussia.
Something has been said here to the ettect that the language of this
treaty as contained in the French original and in the English original
is different. It may be so. What I mean is that one cannot be clainied
to have any superiority over the other in establishing any particular
interj>retation. 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 a coi'rect one, because it bears the signatures of
both ; and, speaking on the subject of translation, it brings to my mind —
Sir Gharles Kussell. 1 do not think there is any material dilfer-
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 incorjjorated 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 iise 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 jierson 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 i)apers? They must be
corrected in some form. Veiy fortunately for us— although l" know my
learned friends would not sup])ose that we were in any niann<M- charge-
able with such fraudulent translations— but 1 say veiy fortunately for
the United States, they had incorporated into the same book, that is,
their original Case, which contained these erroneous tianslations, jdioto-
graphs of the original Itussian documents; and of course we liad put
it into the powei- of our adversary to convict us of any misint«!ri)reta-
tion, or mistranslation, which mi^lithave been given to tliose documents.
We were scarcely the less mortitied on that account; and conceived it
to be the best course on the whole to absolutely withdraw the papers
ili
I:
I
.rn
i* '
138
ORAL AUfJrMENT OF .lAMKS C. CARTER, ESQ.
'M.
m
m
fioni the Ciise, so tliat no allusion ]nif;lit bo inade to tluMn. They never
at any tinu' were a source of any <ivi(leiice very iini»(ntant to us, nor did
they constitute any means of any tionsiderahlo, weifjht in establishing
any i)ortion of our Case. We therefore wholly witlulrew them. It is
unnecessary to say anythinjj further in rejjard to them. What motive
this individual nniy have had in thus imposinj; upon us, it is ditTicult
for me to say. Hia avowed motive was tliat ha wanted to reconnnend
himself to us by showinj*' that he had found in these Kussian documents,
which were, a mystery to everybody else, something; very much in our
favor. It is unnecessary to commentupon that. Thatex|»lanation has
never been wholly satisfactory to us; and we have never been able to
explain the jiround ujion which such a fraud as this was attempted.
I have now concluded what I luive to say in reference to the inter-
pretati(m of this treaty; and I submit, upon the views that I have pre-
sented, that the interpretaticm of Mr. Blaine, which limits the meaning
of the Pacific 0<^ean or South 8ea, to so much of the Great Pacific Ocean
as is south of the Alaskan Peninsula, and of the Aleutian chain of
Islands, is the correct (Uie. What ])art does that i>lay in (mr present
pretensions here? Does it demonstrate our claim completely? Not at
all. Suppose we failed in establishinj? our interi»retation, and the
Government of Great Britain should succeed in establishinfj theirs to
the satisfaction of this body, would it establish their i)art of the case?
Not at all. It has oidy a remote connection, but still a not wlndly
unimportant one. It o])erates 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; aiul the use we make of
the Russian pretensions and our acquisition of Kussian rights in our
argument is substantially this:
First. The sealing industry on the Pribilof Islainls, having been
established prior to 1821, was one of the industries to which Russia by
the Uk se 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 be(;n 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 necesHiuy to its
preservation.
The Arbitrators will i)erceive, 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 assununl
an exclusive right to this industry at that time: that that right, so lar
as it related to Bering Sea, and of course to the Pribilof Islands, was
not disturbed or displaced by the treaties of 1824 and 1825, and not
being displaced, was, inferentially, and by a very strong implication,
acceded to and acquiesced in. Next, that implied acquiescence thus
ORAL ARGUMENT OF JAMES C CARTER, ESQ.
139
ov-
at
led
on,
fairly derived from the conduct of these severiil Governnjents, is
further conlirined by a uniform, lon<j continued lutiniesceiice of sixty
years, down to the year iss;{, durinj; whidi no nati(»n an<l no people of
anynatiim liaveever undertnken to disturb or invade in lU'riiijj;' Sea the
exi^lusive light and i>roprietorship of Russia in this sealiii};' industry.
Those facts and circumstances, although we do not conceive them to
be vital in this controversy, yet have a nniterial and important bearing.
I wish to explain to the Tribunal what our view is of the bearing of
tliese arguments which 1 have laid before you upon the answers to the
first (juestions fornuilatcd in the Treaty; and 1 must call to ycmr
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 Jurisdi(;tion of a character which makes the high
seas over which such Jurisdiction is attcnpted to be extended a part of
the territory of the nation, giving the nation an exclusive power of legis-
lation over it — the diiference between the assertion of such a right as
that, and the assertion of a right to exer<;ise acts of force on the high
seas for the j^urpose of protecting a property, or an industry, of a i)eo-
ple; one of them being an assertion of sovereign Juris(licti()n, the other
no assertion of sovereign jurisdiction at all, but simply a right of self-
protection and self defence, which a nation, acting as an individual,
always has.
1 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 wiiich draws up the ques-
tions which are submitted to the Tribunal.
1 refer the Arbitrators to Article G of the Treaty, which is found on
page 2 of the original Case.
In deciding? th". matters sulmiittod to the Arbitratois, it is agreed tliat the foUow-
iiijl five points shall be submitted to tlieiii, in order that thoir award shall embrace
a distiiict decision upon eacii of said live points, to wit:
1. What exclusive Jurisdiction in the sea now known as the RohrinjJt's 8ea, and
what exclusive ri,uht« in the seal fisheries therein, did Kussiii 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 \:nt a right to
defend property or industry by self-defensive measures. That might
be thought at first blush to be intended by tin; language of that first
section; and yet 1 am inclined to think it vas not tlie intention of it,
but that what was in the minds of the authors of that article was a
l)ower to defend a property interest by defensive regulations; for you
will observe they couple that languageof "exclusive Jurisdiction" with
"exclusive rights in the seal fisheries therciii." They say: "What
exclusive Jurisdicti<m in the sea now known as the Bering Sea, and
Avhat 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 insepiunbly. NN'liat 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 jarisdiotiou as to the seal fisheries recognized and
conceded by Qreat Britain f
I]
;li
1
'li.
140
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Tliore you liavc distinct <ni(1('n('(' tlmt wliat was in tin' iniiids of the
IVaiiMTs of tiiis ticiity wns notliiiij;' Imt ri^lits in seal tislicMies. Those
ri^lits in soal (isiu'ries niifi'lit involve indeed a ri;;}it to exercise an excep-
tional authority on llie sea. 'I'hey niij;iit involve that, but only as a
means of im»t«'('tion. We ])er('eive tiiat l)y the second section, these
claints of jurisdiction are confined to claims of jurisdiction as to seal
llsheries. "Jurisdiction '■ means there authority, poicer. It means rights
to exercise ])o\ver on the hijjh seas in relation to the seal llsheries.
3. WiiH tlio Itody of \vat«r now known as the Bclirini; Sea includtfd in tlio pliruHO
"Pacilif Occiin" as nscil in the tnsity of 1825 lietw«'«'u Groat Hritain and KiisHia, and
■wliat ri^flil.H, if any, in tlio IJelning Sea were hold and exclusively exercisetl bj
Russia alter said litaty J
That clause docs not require any comment.
4. Did not all the rij^hts of linssia as to Jurisdiction atid as to the seal fisheries in
IJelirin.i; Sea oast of tlie waiter boundary in the Treiity hetween the United States
and Russia of the 30th of March 1867 pass unimpaired to the United States under that
Treaty i
Tliere ajjain rights of llussia as to jurisdiction and as to the seal
tisheiies are njcntioned togetiiei'. They are (ioujded together. They
are rights of jurisdi(;tion only so far as the protection of tiie seal fish-
eries re(iuire the exercise of something whicli they choose to call
jurisdiction.
5. Has the United States any rif^ltt, and if so, what right, of protection or property
in the fur-seals tre((uentiiig the islands of the United States in Behring Sea, when
such seals are found outsiths the ordinary three-mile limit?
Apparently that puts a question, not of jurisdiction at all, but merely
a question of property; but tiie Arbitrators will observe that it is a
question of property "when sncii seals are found outside of the ordi-
nary three-mile limit;" and, of (course, proi)erty thus situated neces-
sarily su) (poses some power or authority to protect it there, and there-
fore includes tlu^ question of jurisdiction iu the sense of authority.
Article 7, following that, says:
If the determination of the foregoing questions as to the exclnsive jnrisdietioii of
tlio United States shall leave the suhject in such position that the eoneurrenee of
Great JJritain is necessary to the eslalilishment of Regulations for the ^iroper protec-
tion and jireservation of the fur-seal in, or habitually resorting to, the Heliring Sea,
tlie Arbitrators shall then determine what co.icurrent Rej::ulatioiis outside the. juris-
dictional limits of the res])ective Governments are necessary, and over what waters
snch regulations should extend, and to aid them iu that determination the report of
a Joint Commission to be ai)i)oiiited by the respective (lovemments shall Ije 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 qtieationn as to exclusive jioisdiction, and con-
templates them as such.
It will theiefore 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 tlie rights of jurisdic-
tion acquired by IJussia iu Jeering Sea. as it is called, I wish to state
to the learned Arbitrators how those facts bear u])on tiie answers which
are to be given to the lirst 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 IJering Sea*' etc., should be answered thus:
First. Russia never at any time ])rior to the cession of Alaska to the T7nited States
claimed any exclusive Jurisdiction in the sea now known as IJering Sea, beyond
what are commonly termed territorial waters. She did, at all times siuce the year
ilV 1;
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
141
1821, nssprt and enforce £ ^ oxclufiive rijjht in the "seal llsheries" in said spii, and
also asHcrlfd and enforced tlio riyht to ]>rotect her indiistrieH in said '■ lisheritts" and
her exclusive interests in other industries csrahllshcd and maintained l>y iier upon
tiie islands and shores of said sea, as well as InT exclusive enjoyment of her trad<»
with her colonial estahlishinents npon said islands and shores, liy estaltlishiny; pro-
hihitive rei^nlations interdietiny; all forejirn vessels, e\cepi in cert.ain specifitfd
instanc*\s, trom a]>proachini; said islands and shores nearer tiian Id'l) miles.
To the second questictii, "how far were these chiiiiiH (»f Jiiiisdictioii
fts to tlie .seal ti.sheiie,s recooni/ed and conceded by (xreat Britaiu'J"
we think this should be the answer:
Second. The claims of Hnssia ahove in(>ntioned as to the "'seal tislieries" in Herln;;
Soa were at all times, from the first assertion thereof l>y Unssia down to the time of
the cession to the United States, recoj^ni/cd and aciinicsccd in hy (ireat itritain.
To the third question, that rehitinj; to the scope and meaning of
"Pacific Ocean," the answer sliouhl be tliis:
Tliird. The body of water now known as Hehrin<i Sea was not inclnded in the
jdirase "I'acilie Ocean," as nsed in the treaty of l!^L'5, between Great Hritain and
linssia; and alter that treaty i^nssia eontinned to Indd and to e\ercise exclnsively
a i»roi)erty ri;;ht in th<! fnr-scals resortinjx to the I'rihilof Islinnls, and to the fnr-
sealinji and other indnslries established by her on the shoi'es and islands above mcn-
tion(!d, and to all trade with her colonial establishments on said shores and islands,
with the farther i'ij;ht of i>rotectinff, by the exercise of necessary and reasonable
force over Berinji .Sea, the said seals, industries, and colonial trade frcnn any invasion
by citizens of other nations tending to the destruction or injury thereof.
This is the answer we propose to the fouitli question :
Fourth. All the rijihts of Russia as to jurisdiction and as to the seal fisheries in
Rehriufj Sea east of the water boundary in the treaty betw ecu tin' United States and
Russia, of the 30tb of March, 18U7, did pass unimpaired to the United States under
that treaty.
I
%l
■ i!
lub-
liow
latefl
}ond
/ear
The fifth question, which is, "flas the TTnited States any rij^lit and
if so wliat rijiiit of prote<!tion or proi)erty in tlic fur-seals frcciuentinf;
tlie islands of the Unite<l States outside the ordinary tlirce-inile liniitl"
involves more particularly the discussion of the <[uestitni of property,
to which 1 now proceed.
1 am }ilad to pass from these questions of the interpretation of trea-
ties concluded half a cetitury ago, from (piestions which involve discus-
sions as to the intentions of governments of which we have no very
certain evidence, froui questions which call into consideration and
debate dtiubtl'ul uuitters of fact, or doubtful interi)ietati(>ns t>f public
documents, and recur to rights which rest upon fundamental prin-
ciples; and I approach with satisfaction a stage of tlii. «; 'bate where I
have au opi)ortunity for the tirst time of putting the chi'i-.-^of the United
States in this controversy upon a basis which 1 feel to be impregnable;
I mean the basis of a property interest.
The United Stiites assert a i)roperty interest connected with the.se
seals in two forms, which, although tliey api)roach each other quite
closely, and to a very considerable extent de])eiid 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 j»roi)erty
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 i)roperly interest which they may
have iu that herd, and even if it were held that they had uo property
f
•■ i^-
142
OPAL ARGUMENT OF JAMES C. CARTER, ESQ.
\ :
:|i'
iutorpst in tlie )\or(l at all, tlicy <lo yet liiive a propoity inti'iost in the
iniiustri/wh'wU lins hccji estiiblisiicd by tliciiHm those islaiids, of cariiijf
for and iiiaintiiinin^' thatiii'i'd and s('lc(;tiii^ fiuin ittlut aiiiiicil iiicrcase
for the j>ur|tos«'s of coiMinerce; in otlnM' words, in the husbandry which
is curried on by tlie I'nited States on tliose islands.
VV>, iissert tliose two Ibrins of property interest; but my dis<!iission
will be directed in the first place t<> an endeavor to snpi>ort the asser-
tion of propeity in it.s first form; that is to say, in the herd of seals
itself.
Now, questionsof property are extremely common in municipal Juris-
prudence, as we know; but they are for the most part such as relate to
the transfer and devolution of property, and do not touch the point
whether any ])articular thiufj is the subject of property at all. In this
dissrussion, wliat we have to consider chietly is whether these fur-seals
aie, while they are on the hijih seas, the subject of proi»erty at all.
The assertion on the part of Great liritain I assume to be — indeed,
they so inform us in their Case, Counter Cvise, and Argument — that
the fur seals arc wild animals — animals _/«>'«! natunv — andtiiat 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, rc« uul-
livn — things common to all men, or thinji's which belong to no oiua man
in particuliir. Their contention is that while on the high seas, at least,
being wild animals, they are not the subjects of iiroperty at all.
The I'nited States take the contrary position, and assert that such
are the mature and habits of these animals, and such is the relation
which they have to these animals on the breeding places, that they a
at all times, not only while they arc upon the I'ribihtf Jslands, but ji
while upon the seas, the property of the United States, and propt..^
■which they are entitled to defend and protect. Just as much as they
would one of their shi|)s when navigating the seas.
My learned friend. Sir Charles Uussell, made an observation when he
was s])eaking ujion one of the preliminary motions which have been
ioade before the Tribunal to the ett'ect, as J understood him, that prop-
erty could not be established outside of municipal law, or that any-
thing, in order to be held as ju'operty, must have its characteristics as
pr )])erty '■'■ rooted in municipal lan\^^ I do not know that 1 am <!orrectly
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. J>ut it seems to me that if we wore limited to nHinicii)al law in
our inquiries, we might find the greatest dilliculty. The municipal law
of what countr\ ' 'f we speak of municii)al law, we must go to the
munu'ipal law of some particular <'ountry. Will you settle it accord-
ing to the municipal law of the United States if Tliat would be a short
settlement of it; lor in every form and nnmner in which a nation can
declare its policy bj^ the adoption of municipal laws, the United States
have decla/ed seals to be pro[)erty. My le.irned friend, I ai)prehend,
would not agree that the question of property in seals should be deter-
mined by municipal law, if w^e are to determine it by the municipal law
of tlie United States; and 1 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
Las a NttuN in any particular country, like land, must be determined by
the municipal law of the country where it is situated. That is undoubt
\l ■
m
ORAL AUOUMENT OF .lAMEl^ C. CARTER, ESQ.
143
n lie
)et'U
lop-
iiny-
s as
sctly
Itliat
iniiie
;ipal
|\v in
law
the
>r(l-
lort
can
lates
nd,
ter-
law
Itaiu
my
ises
:'na-
lich
by
ibt
ediy true, it' it lias a sitvx; but I stii»|nis«^ tliat my l«'iiriu'(l liit'iMls would
not ujiU'i' wilii in»' tliiil sciiis Imve a .^/7/^v in tii<' tciiitniy of tiu' I'liitcd
States iit all times, if lliey li.ive no atlmittcd silits in the United
States, the (luestion as to wliether they lia\eaA</^/,v there cannot be
determined by any apiiciil to inniiiri|)al law alone, hut iinust be deter-
mine(l hy an appeal to international law.
In all this I do not mean that miinieipal law in relation to ]ii'o|ierty
is of no impoiiance in this discussion. On the contrary, it is of the
very hi;:liest iniportaiice that we should seek it, and know just what it
is; and it is of eonse(pience in this discussion because it is evidence of
what the law of nature is. rro|ierty never was created by inuiiicipal
law at all; that is to say, by positive lejiislative enactment. Societies
have not c(une tojjether ami (jreated property. l*rop<'rty is a creation
anteiior to human society. Human society was created in order to
defend it and supp<ut it. It is one <»f its main objects. It rests upon
the law of nature; and the whole jurispriuh'iice respectin}*' property as
it stands in the municipal law of the civili/ed stat«'s of tlie 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 <'ivil law is crystallised into
the form of codes, there are no laws, no enactments, which declare
what shall and what shall not be the subjects of ])roi)erty. At least,
I apprehend so. J'roi)erty is assumed as already existinj;. It stands
ujion the law of nature. Th<' <pie8ti(uis. however, what shall be juop-
erty and what shall not be property, and what shall be the rules
respecting the protection whic^h is }:fiveii to it — all these questions have
been discussed for a thousand years and more, in municipal law, by
learned tribunals, in many difterent forms; aiul. consequently, the
whole law of nature, so far as it aftects the subject of property, will
be found to be developed in a hi^ih decree in municipal law. There-
fore, ami to that extent, 1 concur with my learned friend, that it is
hi;ihly iiiii)ortant to investifjate the municipal law u])ou the subjeiit of
property; and wherever it is found universally concurring upon a {j^iven
point, it may be taken as the absolute voice of the law of nature, and
therefor'^ of international law.
[The Tribunal thereupon adjourned until Tuesday, April 11), 181)3, at
n.oO o'clock a. m.]
ni:
n
ELEVENTH DAY, APRIL ig^", 1893.
:|o
i 11' j
The Tribunal coiiveiiod pursuant to adjournment.
The Pkksident. If you plcaso, ^h: Carter, you may continue your
arjiuuient.
Mr. Cautki;. Mr. rresidcnt. the point upon which I am now en;'aj,'e(l
relates to that branch of our arjiumeiit whi'-h deals with the (piestion
of the allcfjed pioperty interest ()f the United iStates in the fur seals of
Alaska. I had brietiy spoken yestenhiy to the etlect that the rival con-
tentions of the twodoveruuients upou this subject are to be determined
bj' international law and ])ointed out our means of ascertaininj>' what
the international law upon any particular subject was, amonj; which I
mentioned an incpiiry i)ito what has been decided by municipal law
and by the inunicii);d law of various nations so far as that law should
be Ibund to be consentaneous upctn the i)oint, in dispute.
The rival contentions of the two parties upon the (piestion of property
I should ])erhaps brietiy repeat. That of (ireat liritian is that the fur-
seals of Alaska are rt:s communes, not the subjects of property, but open
to the appi'opriation of all nmnkind; and that because they are icild
animals. TIk^ position taken on the ]>art of Great liritian is in sub-
stance that no irild animals are the subjects of |)roperty, and that seals,
beinj*- wild, are not the subjc(;ts of property. The Tnih'd States on the
otJun- hand, insist that whether an animal is the subject of property or
not depends upon its nniureawA habits; that the two terms " wild " and
"tame" are descriptive of nature and habits to a certain extent: bur,
in order to determine whether any particular animal, whether wild or
tame, is the subject of i)roperty, we nmst fjo into a closer incpiiry into
its nature md habits; ami if it befou?ul that an animal, althoujfh com-
moidy desioiiated as wild, has such nai>ire 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 res|)ect to the
(piestion of property, the same determination must be made as in the
case of donu'stic animals, and the aninuil must be declared to be the
subject of property. The point, therefore, upou which we lirst insist is
that in consi(lerin;>' whetiser an aninnil, whether lie is designated as
"wild" or "tame"'' is the subjecr of ])roi)ertyor not we must institute a
carcliil intpiiry into its nature and habits and the results of thit inquiry
will determine the (iiiestioii. In this particular I think I am siipi>oited
by the best authorities. ChanceHor Kent, whose authority I am jihul
to say is rccoiiiiized by my harned friends on the other side, for they
refer to this very passaj^c whi"h 1 am about to read to the Tribunal,
says (Page 4.'i of our ininred Argument):
Aiiiiu.'ils /eri/' iKitiirir, so loiij;- iis tlicy iirc i-fcliiinieil hy tlic art iind jiowor of man,
an' also the siilijcct of u <iiialili(Ml proiicrty ; l)Ht when tlioy art> abaiuloin'd, or csc^anc,
uikI return to their iiatiinil lilicrtv ami forocitv, without tUn
iHH rerrrlt'iidi, the
proiierty in liinii coaHcs. Wii'le tills i|ii:ililie<l iiiupcrty contniiicH, it is as niiicli under
tin' |trot('('tion of law as j. y oilier iiiojieity, ami evory invasion of it is redressed in
till! same iiiantior. I'liu dilliciilty of asi crtaiiiini;' with (uucisitni tiiu applieatiuii of
114
ORAL AKGUxMENT OF JAMES C, CARTER, ESQ.
145
i your
Lt'stio"
eals of
ill con-
f mined
cv wliat,
vhidi I
)iil law
should
the fiu-
lUt open
ire u-ild
in sub-
iit seals,
s on the
)erty or
d" and
it: Imu,
,vil<l oi'
livy into
(jli coin-
enable
nials. to
t to the
« in the
|o be the
insist is
liated as
titnte a
inquiry
pported
lam }ilad
or tliey
libunal,
|r of msin,
■or »'8t;iii»<',
l/ci(ili, the
Lch uiulff
|licsstMl in
lit'iitiuii of
s
the law arises from the uant of name certai:' di;<:i'minate Hiandard or rule, by which to
determine wliiMi au iiuiinal ivs/t'/,i', fei domitn- iiatnra'. If an aiiiiual holoiijjs to the
claHS of tame auiinals, as, for iuHtaiifti, ^o the class of liorses, sheep, or rattle, he is
then a Kiil>jf(!t clearly of ah.soltitfj i)ro|)(>rt.y ; hut if he belontjs to the class of animals,
which are wild by nature, and owe all their temporary docility to tho diseii>lin(* of
man, such as deer, lish, and stivtiral kinds oi' fowl, then the animal is a subject of
(|ualilied property, anil which continues so lonjj only as the tanieness and dominion
remain. It is a theory of some naturalists that all animals were originally wild, and
that such as are domestic owe all tluur docility and a'il their dej;eTieraey to the hand
of man. This seems to have l)een t le opinion of Count Buti'on, and he says that the
doi;, the sheep, and the camel have dejicnerated from the strenj^th, spirit, and beauty
of their natural state, and that one j)rincipal cause of their de;;eneracy was the i)er-
iiicious intluence of human power. Grotius, on the other hand, says that sa\age
animals owe all their untauuHl ferocity not to their own natures, but to the violence
of man ; hut the <u)nnnon law has wisely avoided .all pirplexins ()Liesti()n8 and refine-
nu'iits of this kiiul, and has adopted the test laid down by I'MlleMdorf, by referring;
tlie ([uestion whether tlie animal be wild or tame to our knowlcdije 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 tribnnals. The lirst is the case of
Jktries vs. Poiccll, reported in Willes Reports, paj;e 40.
In that case the question was whctlier deer cauglit in an eiu'losure
and having certain chara(tteiistics and used for certain purpo.ses were
di.strdinable for rent. 1 may say to tliose uot familiar with the special
doctrines of the common law ol" I'ingland that tliere was a jUiKtcss by
which a landlord migiit recover his rent by goi»'g upon the premises of
his tenant and taking property on the ]>remises; but it was contined to
](ersonal property. !So tlie question whetlier deer were distrainable for
rent or not involved tiie question wliether tiiey were persoiud propirty
in tiiat particular instance. Tlu' court in that case toolc notice «»f the
])roofs which were offered in respeitt to the nature of those particular
deer, their liabits, and tiu> imi'poses for which they were kept; and,
tinding that they were kept, not foi j)leasure, but for profit, tluit they
were carefully preserved, and leaied ibr the beneficial iiurpose of taking
venison from them and furnishing a supi»ly of it to the market, deter-
nii..ed tliat they were personal ])roperty aiul tlierefore distrainable for
rciit. . Tlie gi'ound was that altliougli deer belong to the class of what
are commonh- designated "wild" aninuils, ueveitiicless when they are
taken and kept by man for the i)urposes for which it was proved in that
case they were kept, when tliey wen; treated by man in the way in which
they were ])roved to have been treated in that case, although wild ani-
mals, yet, being used for the siuiu' intents and ])urposes as domestic
animals are used, tliey should be <;lasse(l as p> isonal pio[»erty just as
domestic aninals are so classed.
Substantially the same decision was mad ; in reference to the same
animals in the case of Mutujan vs. thr IJurl <>/ Aheriidrenny, which is
rei»oriv'' hi the 8th Common IJencli l{ep(nts. There the question was,
ui)ou the death of the owner of a i)ark, whetlu'r deer contained in the
!>;n k went to the heir of the ownei', or to his executor; in (»ther words,
it was the question whether they were oiUu-Jn-d t*> lite .soil, and formed a
l)iirt of the rcalli/, and tlierefoie were not distinctly per.'^onal ))roperty,
or whether f liey went to the executor, as being distinctly ])erson:d ]>rop-
erty. lu tliat cast; a great deal of evidence wa.s gone into upon th(^ trial
for thepuri>ose of showing the liabits of tliose particular <leer, and how
tliey we
cept.
park. The whole question of
propei'ty in live animals was very nnudi gone into and discuss«!d. It
was shown by evidince that fheie was it hirgt^ number of deer then^;
'lint they were c;ii-e(l for; that at times they were led: that they were
ill t!i' li.ihjt of iiMii'ting to particular places in the park; and that from
ii
'/ ii
Mi
r^
{'-i
a a, I'T \n-
10
146
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
time to time selections were iiinde from the mimber lor slangliter and
tlie victims were sold in the nmrki't lor venison. All that was ])rove(l.
There was a verdict in that case for the ])laintift" which was based upon
the ('harife of the judjje to tiie Jury that they mijjht take this evidence
into consideration in determininj;' the (piestion whether the deer were
l»ers()nal property or not; and that ver<iit't for the plaintiff established
that they were the ])ropcrty of the executor; th.at they went to the
executor instead of to tlie heir, and were therefore peisonal property.
On a review by tiie wliolc court of tiiat verdict it was decided that this
evidence was all proper and relevant to the (juestion; that it was all
approitriate, and relevant to the point whether the animals were prop-
erty or not; and tliat it did satisfactorily det<ainine, or was a sufficient
ffroun<l npon which the Jury might lind, that the animals were personal
pror.erty.
I'iiese authorities to which I have thus alluded are quite suffl(!ieut
to establish tlie only point for which 1 at present cite them, namely,
that in order to deterinine whether an animal commonly designated as
"wild" is the subject of i)roperty or not we must institute an inquiry
into the nature and habits of the animal — that the general terms
"wild" and "tame" are not sufliciently significant for the purpose;
that a dose 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 animals. If so,
they are property the same as domestic animals are.
Now, then, what is the case with the fur-seal? So far as respects
municipal law — for I am now examining the question wholly as it is
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 wliether animals more or less reseiid)ling the seal
may or may not be the subject of pro^ierty have arisen and been decided
in municipal law. There have been a great many cases decided iu
respect to animals as to which it was d<mbtful whether they belong to
the category of wild or tame — tliat is if you treat the terms "wild"
and "tame" as a Juridical classification — or whether their nature and
habits were such as to make tliem properly the subJeLts of pi'o])erty.
Take the case of iciUl been, for instance. There is an animal wliii;h lies
quite near the boundary line which separates wild from tame animals;
and the iiHiuiry was made at an early i)eriod in nuiiiiciiiai law — a jjcriod
so eaily that tradition does not infoini us of tli'^. lirso instance when
the case arose — whetlier that animal was the subject of property or not.
The same ipicstion has arisen in reference to iriUl (jecne, and swans.
Those animals belong to the classes commonly designated as "wild";
but tliey lie near the bonndary. They may sometimes be rechiimed, as
it is called. Th«' question has arisen and been «letermined whether,
Avhen reclaimed, tlicy are, notwithstanding the wildness of their nature,
1 he subject of jhoikm ty. Tiu^ same (juestion has also arisen in reference,
to deer and ]iige(»ns and other animals.
Xow, therelbie. we are to examine those instances iu which the munic-
ipal law lias dealt with the cases of animals commonly designated as
"wild," but which still have, in tlieir nature and habits, some cliarac-
teristics wiiich assimihite them to tame ones, and see what conclusions
municipal law arrives at. In gi'iieral tliese conclusions are all exceed-
ingly well stated by the most I'amiliar of authorities in the I'^nglisli law
and one of the most elegant and jirecise, I mean I'dackstoiie. 1 refer
to his treatment of the (|iM'stioii. 1 read from what is quoted from him
on page -1.") of my piinied aigiiment:
ter and
[)rove(l.
(I uptm
^•idence
Br were
blished
to the
I'operty.
hat this
was all
le vrop-
utlii^ient
persoual
iufficieut
namely,
uated as
1 inquiry
al terms
purpose;
t>f seeing
auimal is
s. If so,
\ respects
ly as it is
Lttod that
[)ecitically
^g the seal
n decided
ec^ided iu
belong to
lis "wild"
ature and
property,
which lies
animals;
■a i)cri()d
n(!e when
ty or not.
Iml sicaiiH.
"wild";
aimed, as
whetlier,
lir nature,
letcrcnce
Ithe nuiuic-
jgniitcd as
luc charac-
])iu'lusi(>ns
[dl exceed-
Inglishlaw
V,. I refer
|l from him
OIJAL AROU:\rENT OF JAMES C. CARTER, ESQ.
147
II. Other juiimals that are not of a tamo ami <lon)estic nature are either not the
objects of projierty a.i all or else fall nniler our other division, namely, that of quali-
Jii'il, rniiiled, or xpedaJ projieity, whith is such us is not in its nature i>eruuiuent, but
may sonii times subsist and at otlx r times not subsist. In discussinj; whieh subject,
I siiall, in the first place, show how this s|)e('ies of projieity may subsist in such
animals as are./mc nattiia , or of a wild nature, and then how it may subsist iu any-
other thinjL^s wlien under piirticuhir eireuinstances.
First, then, a man may bo invested with a (|ualilie(l, hut not an absolute property
in all creatures that are /era' tntliira; either j>cc indiisiriam, propter impotentiam, or
propter privileijiiim.
1. A (lUitlified jirojierty may subsist iu animals /ow vatur(r, per industriam hominis,
by a nian"s nx-laiiiiiiif/ and nuikinji thoni tami^ by art, industry, and education, or by
so confinin}; theiu wilhiu his own immediate jjower that tliey can not escajio and
use their natural lilicrty. And under this head some writers have ranked all the
former species of auimals we have mentioned, apprehendinji; none to be orifjin.ally
and naturally tame, but only made so by art and custom, as horses, swine, and other
cattle, which, if orijiinally lett to themselves, would have chosen to rove up and
down, seekinfi; their food at larj^e, and are only made domeslii^ by use and famili-
arity, and are, therefore, say thej', called viansuvta, qiiani manui aumieta. J$ut how-
ever well this notion may bo founded, .abstractly consiilered, our law apprehends the
most obvious distinction to be between such animals as we frenerally see tame, and
are therefore seldom, if ever, found wanderinj!; at larjie, whieh it calls domiiiatw
natura; and such creatures as are usually found at liberty, which are therefore sup-
pose<l to be more emphatically fer(v nalurce, though it may happen that the latter
shall be sometinu's tamed and confined by the art and industry of man — such as are
deer in a ]>ark, liares or rabbits in an inclosed warren, doves in a dove house,
pheasants or ])artridue8 in a mew, hawks that are fed and commanded by their
owner, and fish in a ]irivate pond or in trunks. These are no longer the propcsrty of
a man than while tliey continue in his keeping or actual possession; but if at any
tinu* they regain their natural liberty his (U'operty instantly ceases, unless they have
(tnimiim revcrleinli. which is only to be known by their usual custom of returning. A
maxim which is borrowed from the civil law, " rcverdendi (inimum ridcntnr dcnnere
liolii-re tunc, cum ren'ricndi covnitetiidinem dv8crnerii\l." 'i'lie law, then'fore, extends
this jtossessiou further than the mere manual occupation ; for my tame hawk, that is
l)ursuing his quarry in my presence, though he is at lilierfy to go where ho pleases,
is neveitheless my pro])erty, for he lialh uuimum rircrletidi. t^o are my jiigeous that
are Hying at a distance from their home (es])ecially of the carrier kind), and likewise
th<^ deer that is chased out of my park or fore- :nid is instantly iiursued by the
keeper or forester; all which remain still in my | .^session, and I -(ill preserve my
qualilied projierty in them. Hut if they stray without my know ledge, and do not
return in the usual manner, it is then lawful for any stranger to lakt^ them. But if
a deer, or any wild animal reclaimed, hath a collar or other mark ]iut ujion him. nid
goes a.id returns at his pleasure, or if a wild swan is taken and mai l;i'd and turned
loose iu the river, the owner's property in him still continues, and it is not lawlul
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 aui ferw uatiinr; luit,
when hived and reclaimed, a man mav liave a (lualilied pro]ierty in them, by i he law
of nature, as well as by the civil law. Aiui to the same pur])ose, not to s;i\- m the
samewords with the civil law, speaks Bracton; occui>ation, that is.liivingoriiii .uding
tliem, gives the property in bees; for, though a swarm lights ujicu my tree, I have
no nu)re jiroperty in them till I have hived them than 1 have in the birds which make
their nests thereon; and, therefore, if am)ther hives them, he shall be their ])ro-
prietor; but a swarm, which lly from and out of my hive, are mine so long as 1 can
kee]! them in sight and have power to pursue them, and in tliese circuuisUiiMis no
one else is entitled to take them. But it liath been also said that w ith us the only
ownership in bees is ratione soli, and the charter of the fnr<'st, which allows every
IVeenian to be entitled to the honey fmind within his own \\<)(i(is, atiords great coun-
tenance to this doctrine, that a qualiticil i>roi)erty may be had in bees, in considera-
tion of the property of the soil whereon they are found.
In all thes(! creaturcss, reclaimed from the wildness of their nature, the ])roiierty is
not .Mlisidute, but defeasible: a pro)ierty that may he destroyed if they resume tlnur
aur-ient wildiu'ss, and are found at l;irge. i'or if the pheiis mis esi'ajie from the mew,
or the lishes from the trunk, anil are seen wandering at large in their pro))er element
they become ferir natiinr again, aud arc free antl ojteu to the first occupant that has
ability to sieze Ihem. Hut while they thus continue my qinililied or defeasible
pKiperty, they ate as imich under the protection of the law'as if they were absolutely
and indefeasibly mine; and an action will lie against any man that detains them
liiim me or unlawfully destroys them. It is also as much fcdony by common law to
.■^feal such of them .'TTaie IH for food as it is to steal tanic aniiniils; but not so if they
are oidy kept lor pleasure, curiosity, or whim; as dogs, bears, eats, apes, parrots,
■'..E
148
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
and singing birds; because their value is not intrinBic, but depending only on the
caprice of the owner; thon^h it is sucli an invasion ot'i)ioiierty as may amount to a
civil injury, and he rediess<'d by a civil action Yet to steal a reclaimed hawk is
felony i)oth by common law and statute; which seems to be a relic of the tyranny of
our ancient sportsmen. And, among our elder ancestors, the am'ient Britons, another
species of reclaimed animals, viz., cats, were looked upon as rcaturrs of intrinsic
valii"; aiul the killing or stealing one was a grievous crimi', and sii]>jccted the
oliender to a iine: esjjecially if it belonged to the King's household, and Avns the
citiitoH horreir€(/ii, for which there was a very i»eculiar forfeiture. And thus much of
(lualified property in wild animals, reclainutd per iudunlrianiK
The term wiiicli describes this spetvies of property in wihl aninmls —
property per iiuhintriam — iiidieatos the foiiiKlatioii upon which it rests.
It is property created by the art and imlustry and labor of man. It
points out that this hibor, art, and industry would not be called into
activity, aiul would not produce its useful and beiielicial results, unless
it had the reward of property in the product of it, aiul that therefore
the law assiji'us to such animals the benefits and the i)rotection of
jn'opcrty for the purpose of encouraging the industry which produces
then\..
That is the language of Blackstone. It is taken almost bodily from
an earlier writer in tlie law of lOngland — I mean ]>ra(!t(>n. And it was
by hira undoubtedly derived from the civil law in which all or nearly
all of these doctrines were established at a very early period indeed.
At a very early period in the develojunent of tlie IJoniiMi law these
doctrines were established. I now call the attention of tiie Tril>unal
to further extracts from writers ui)on municipal law and I am going to
read from page 108 of our printed Argument, and first from "Studies
in the Koman Law" by Lord Makeuzie, a well known authority. Lie
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 belonjj. to the taker,
unless they are expressly declared to be forfeited by some penal law, (Inst., 2, 1, 12;
Gains, 2,(5(5-69; Dig., 41, 1, li, jir. .55). Deer in a forest, rabbits in a warren, lish in
a pond, or other wild animals in the keepinvr or jiosscssion of tlie lirst holder can not
be ap])ropriated by another unless they regain tlieir liberty, in wlilch case they are
free to be again a<'(inirt!d by occupancy. Tame or domesticated creatures, sncli as
ho te, sheep, i)oultry, and the like, remain tlie property of their owners, though
strayed or not coiilined. Tlie same rule prevails in regard to such wihl animals
alrea<Iy approi)riated as are in the liabit of returning to their owners, such as pigeons,
hawks in pursuit of game, or bees swarming while pursued by their owners (Inst., 2,
1, 14, 15).
Then again, a very ancient authority in the Roman law, Gaius, says
( " Elements of Eoman Law " ) :
Kec. 68. In those wihl animals, however, which are habituated to go away and
rt'turn, as jjigcons, and bees, and deer, which habitually visit the forests and return,
the rule has lieen handed down that only the (;essation of tlie instinct of returning
is tlie termination of ownership, and then the jirojieity in them is actiuired l)y the
next occujiant; the instinct of returning is held to be lost when the habit of returning
is discontinued.
Another celebrat(Hl writer in the civil law, Savigny, says:
With respect to the poNse<sion of animuls these rules are to be applied thus:
i'ir.st. Tame animals are possessed like all otiier nnv allies, ;. c. , the jtossession of
tin in ee.ises when they can not be found. Second. WiUl :uiimals are only possessed
so long as some special disposition (custodia.) exists \s liirli eii;i!ili's us actually loget
them into our power. It is not every custodia, the re to le, wliiciiis siitlieient ; whoev er,
for instance, keeps wild animals in a ])ark, or fish in a lake, has uiulonbtedly done
something to secure tiiem, but it does not de)i(Mid on liis niiMe will, but on a variety
of accidents whether he can aeinall\ ealeh thein when he wishes, conseiiuently,
possession is not hero retained; ipiile othei w ise w itli lish kept in a stow, or animals
''^~ iHook 11, p. JUL
'(
ORAL ARGUMENT OF JAMES C. CARTER, EPQ.
149
kly on the
lonnt to a
l1 hawk is
yiaiiiiy of
IS, anotliiT
f intrinsic
iccted the
il was the
lis much of
jiiinals —
it rests.
num. It
iiUed into
ts, unless
tlu'iefore
tectiou of
produces
)dily from
jid it was
or uearly
)d iutleed.
law thcso
; Trilmiial
n goiiifj; to
1 "Studies
ority. Ho
tHO that even
to the taker,
.St., 2, 1,12;
riH-n. lish m
hl<!r can not
l^so they are
ires, such as
crs, thoujih
.villi auiniitls
has V'.!i''0»*'t
ers {lust., '2,
fcraius, says
to away and
antl return,
l)t' returuius
luired liy the
lol' returuiug
thus:
Lissession of
|ly pus.itvssed
Itiially toi;ct
lit : whoever,
llitedly done
Ion a variety
l)iisei|U('ntlv,
,,!■ luiiiiials
in a yanl, lucanse tlien they may he caimlil at any nMUncnL (111). !!, i^ecs. II, 15, ilo
]ioss.). Third. \\'11<1 l)easts, tameil artilicially, are likened to donu'sticated animals
NO ionj^ as they retain the lial)it of icturnin;;' to the s))ot where their posse.ssor keeps
tliein (donee anhnnm, i. e., coiiHintudini'm, leveriendi Itahcnt),
And aimtlier very (jolebra ted writer, not upon municipal law, but upon
the law of Xature and Nations, Putlendorf, says (lib. 3, cap. 1, sec. 3):
Althoiifjh a loss seems to relVr i)ro|)erly to property, yet by us it will be {jenerally
acee]>ted as embraeiu;; all injury that relates to the body, fame and modesty of man.
i<o it si>;niHes every injury, corruption, diminution or removal of that which is ours,
or interception oi ihat, whi< h in perfect Justice we oujjlit to liave; whether {j;iven by
nature or conceiU'd hy an antecedent human actor law; or, linally, the onu.sHion or
denial of a claiiu which aiujtlun- may have upon us by actual obligation. To this
tends the lltth Hcclamatiou of Quintilian, where he ])hiiuly shows that one liad
intlieted a los.s who poisoned the llowers of his own <,Mrdeii whereby his ueifjhbor's
bees perished. Yet the convincini; reason consists in this: !^in<e all aj;re<t that bees
are a wauderinfj Icind of animate life, and because they can in no way l)e accustomed
to take their Ibod Irom a given iilacc; therefore, whenever there is a right of taking
theiTi, 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, 1 will not read be(!anseit
is ex])ressod by Blackstone almost in the same terms in the passtjge
from that autlior which I have just now read. The doctrine is stated
very intelligently and clearly by Bowyer, a writer upon the Civil Law:
Wild aninmls, 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 thom. The reason of this is, that whatever is the property of no
man becomes, by natural reason, the property of whoever occui)ies it.
It is same whether the animals or birds be caught on tiie 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 otV by the owner of the land. When you hsive caught any of
these animals it remains yours so long as it is under tlie restraint of your custody.
J5ut ;is soon as it has escaped from your keeping and has restored itself to natural
lilterty it ceases to be yours, and again becomes the i)i'operty of whoever occupies it.
'J'lie animal is understood to recovei' its natural liberty when it has vanished from
vour sight, or is before your eyes under such circumstances that pursuit would be
Ilil'ticult.
Here wo find the celebrated maxim of G.ijns: Quod iiuUius est, id ralione naturali
ocnipaxti coiicedititr. It is fouucU'd on the following doctrine: Granting the institu-
tion of tiie rights of proiteity auu)ng maidtind, those things are each man's property
wliich no other man has a right to take from him, >iow, no one has a right to that
which is rex niilliita; consei|uently whoever possesses rem nulliuH possesses that which
no one has a right to t.iko from him. It is therefore his property.
I pass on to nearly the middle of page III:
The general priuci]de re8i)ecting the acquisition of animals fcrw vaturcr is, that it
is absurd to hold anything to Iw a man's ]»ro])erty which is entirely out of his power.
Jiiit (irotius limits tlie apidication of that jirinciijle to the acqiriHjtion of things, and
therefore justly dissents from the (h>ctrine of Gajus given above, that tiie animal
becomes again rex iiiilliiix iuinu'diately on re<:overing its liberty, if it Vw ditlicult for
the first occuj)ant to retake it. He argu«'s thai 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 ho lose it i'rom a natural cause, he does not necessarily lose his right to it
together with the possession ; but that it is reasonable to presnun- that the proprietor
of a wild animal must h;\ve renounced his riglit to it when the animal is gone
beyond the hope ot' recovery anil where it could not be identiiied. He, therefore,
argiH's tliat the right of owners]ii|> to a wild animal may be rendered lasting, not-
witlistanding its (light, by a mark or other artilicial sign by which the creature may
be recognized.
ivrr. Justice Hahlan. The last paragraph in that citation is important.
^Ir. Cauter. The last pariigraph from Bowyer is pertinent. It is on
page 112:
With regard to creatures which have the habit of going and returning, such as
jiigeons, they reinain tlic property of those to whom they belong so long as they
retain the animus reverlendi or disposition to return. But when they lose that din-
I
■I jj
I
1
i
lU
i
150
ORAL AKOUMENT OF .TAJIKS C. CARTER, ESQ.
1^ ■
poHitioii they becrtine llie property <it \vli<iiiis(M;ver secures tliein. And they iimst ho
held to have h).st the iiiiimiiH ri'vn-icmli as soon as they liave h)st tlie habit of retnrn-
in<;. Sneh are tin; doclriiics ot llie Koiiian law, which are coiilorniahle to the En;;lisb
law, with the ([iiiililii-atioii of (irotius, whieii is applicable to the ease of all nninials
ftrw. natuni: that is to say, that a niarlv or iioUar j)revents the rigiitH of the proprietor
of a wild animal beiiij; extinjinished by its escape from his siyht and pursuit.
I call the attention of the Tribunal to a decision by the Su])i'eme
Court of the State of Xew York, one of the courts enjoyino- the hijihest
authority in the United States, and es])et'ially enjoying- the highest
authority at the time this <lecision Avas made. It is the case of Amory
vs. Flyn and is re})ort('d in JOtli Johnson's lleiiorts 102. It is contained
on page IIG of onr ]>rinted 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 bnjtight 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 ])articular spot, and
yet were in the habit of straying away from it; and having strayed oft'
upon a certain occasion anotlier man took them and handed tliem over
to still another and that other refused to give them up on demand. The
question was whether the ])laintitt' had a property in them.
It appears to have been held in the<!ourt 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 id<'ntity was ascertained, they were tame and gentle, and had lost
the power or disposition to lly away. They had been i'rightened and chased )»y the
defendant's son, with the l^nowledge that tliey belonged to the i)laiiitift' and the case
•alfords no color for the iiil'erence tliat the geese; had n gained their natural liberty iis
wild fowl, and that the ])roperty in them had ceased, 'fhe defendant did not cou-
sidtH' them in that light, tor he held them in consequence of the lien which he
supposed he had ac(iuired by the ])letlge. This claim was not well founded, lor he
showed no right in the ])ersons who ]iawned them for the liijuor so to pawn them,
and he took them at his peril. Here ^vas clearly an invasion of private right.
I call attention to a later decision by the same Supreme Court of 2s^ew
York which is repoifed in 15 Wendell's Reports. So much as we have
printed of it is on page 1 17 of the printed Argument. The pro])ositious
which are prefixed to tlie report in the ca.se as being those which are
decided by it are these :
The owner of fcww 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 tlie l)ees and takes th(! honey.
Where bees take nj) tlitMr abode in a tree, they belong to the omter of the noil, if
they are iiKrcclaimid; luit if they have been veduimnl, and tboir owner is able to
identify his iiroi)erty, they do not belong to the owner of the soil, but to him who
had the former ]iossession, altiiongji he can i:ot enter upon the lands of the other to
retake them without sn))Jceiing himself to an acition of tres])ass.
The facts of that case appear to be these: One Kilts had brought an
action against Coff in a justice's couit, an action in the nature of an
action of tresi)ass, for taking and destroying a swarm of bees and the
honey made by them.
The ])laintifi" in his suit before the justice recovered a judgment and
that was atlirmed on appeal by the court of Common Pleas of the county
where tlie suit was brought. The defendsint then carried the case by
what is called a writ of error, to the i)rincipal court of tlie State of New
York at that time — not the highest iii)i>elliite court, but yet a high appel-
late court. Mr. Justice Nelson, very celebrated in the United States
as one of the most <listinguished judges of his time, delivered the opin-
ion of the court. He says :
i! unist l>o
)!' retuvn-
1 nuiniiils
troprietor
iiit.
5ai>renie
higliest
if Amory
oiitained
called in
ibr two
, trespass
^^- i>
umea by
spot, and
tiayed off
luMii over
aid. The
1 no prop-
.0 subject of
md liiul lost
liisod Wy tlie
uiil the ciise
;al liberty as
Idid not coii-
wliich he
ded, lor he
pawn them,
ight.
irt of Iis^ew
,s we have
oi)ositioiis
which are
of trenpniis
on the soil of
tif the «oi?, if
'r is able to
to him who
the other to
►rought an
ture of an
?,s and the
Tment and
the county
le case by
fate of New
ligh appel-
Ited States
the opiu-
ORAL ARGUMENT OF JAMES C. CARTER, EoQ.
151
Animals, />'(■«■ nalimv, when reelnimed by the art and jiower of man, are the subject
of a (pialitied proi)erty ; if th<iy return to their niitural liberty and wildness, without
the animus rerertcndi, it eeii.ses, Durinj^ the cxisttMice of the qualified property, it is
under the ]irote('tion of the law the same as any other pro{)erty, and every invaHion
of it is redressed in the same manner. Bees are ./mr nalura; but when hived and
reclaimed, a ]ieis(in may have a i|na1ified propiTty in them by the law of nature, as
well as the civil law, becuj)ation, that is hivini; or inclosinn; them, gives ])roperty
in them. They are now a common s|)ecies of ])roperty, and an article of trad(% and
the wildness of their nature, by experience ami practice, has become es.scntially sub-
jected to the art and power of man. An unreclaimed swarm, like all otlier wild ani-
nnils, belonfjs to the first occupant — in other words, to the inrson who first hives
tlu^m ; l>ut if the swarm fly from the hive of another, his qualified projxMty continues
so lonji as he can keej) them in siyht, and possesses the power to j)ursuellu!m. I'mler
these circumstances, no one else is entitled to take them. (2 Black.Comm., ^'.13; 2
Kent's Comm., 394.)
A ease decided by the Court of Common Bench in Great Britain, and
to which I have already referred, that of IMorgan and another agaitist
the earl of Abergavenny is prifited almost i» extenso, beginning on i)ag©
119 of our printed argument. It is too long to be read ; but the whole of
it has beeu printed in order that the Tribunal may observe the circaim-
stances under which that case arose, and thus ascertain the precise
point which was decided. But I will call the attention of the Arbi-
trators to the paragrajdi near the bottom of page 125. I have said tliat
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 (Hiief .lustice
Willes in the case of Davies v. Powell, are deservinjj; of attention. The ditlcrcnco in
regard to the mode and object of keeping deer iu modern times from that which
anciently prevailed, as pointed out by Lord Chief .Justice Willes, can not l»o over-
looked. It is truly stated that ornament and profit are the solo objects for which
deer are now ordinarily kept, whether in anciejit legal parks or in modern inclosures
so called; the instances being very rare in which deer in such ])lacesare kept and used
for sport; indeed, their whole management differing very little, if at all, from that of
sheep, or of any other animals kej)t for j)rolit. And, in this case, the evidence l)efore
adverted to was that the deer were regularly fed in the winter ; the does with yfMing
were watched; the fawns taken as so(m as drop])ed, and marked; sehsctions from
the herd iniule from time to tinui, fattened in places prepared for them, and after-
wards sold or consuMK-d, with no difference of circumstance than what attached, as
before stated, to auimals ke]it for ])rotit and food.
As to some being wild, and soim^ tame, as it is said, individual animals, no doubt,
differed, as individuals in almost every race of animals are fouml, under any eircu'n-
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 ((uietness.
l/'pona question whether deer are tamed* and reclaimed, each case must depend
n]»on the particular facts of ir; and in this case, the court thiiik tiiat the facts were
such as were proper to be 8ui)mitted to the Jury; and, as it was a (piestion of fact
for tlie Jury, the court cannot perceive any sutlicieutgiounds to warrant it in saying
that the Jury have come to a wroug conclusion upon the evidence, and do not feel
antliorized to disturb the verdicf
The decision therein referred to with approval was made by Lord
Chief Justice Willes in the caso oi Davies rs. Foicell, a report of which
is printed on page I'JG of the prhit^ed argument.
The point in cotitroversy is staled ou 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 iu the pleadings,
were distrainable or not. It was insisted for the x>laiutiff that they were not;
(1) Hecause they were /era' wa/Hra-, and no one can have absolute pro])erty in them.
(2) Ifocause 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 argument was drawn ah hiuHitato, because there is no instance in
which deer have been adjudged to be distrainable.
SH
mi]
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152
ORAL ARGUMENT OF JAMKS C. CARTER, ESQ.
Tlion the loaniod jti<l.n(' ,t;oos on to Siiy:
First. To Kiipiioit tlio lirst olticctlini, and \vlii<h wuh priiieiitall.v relied on by the
counsel Cor tlio pliiintiH', tlif.v filed Finch 170: Hro. Ahr., tit. " I'mix-rty," pi. 20;
Keilvvay, HO h. (.'o. I>it. -17 a; 1 Rol. AUr. (iOO; and Hnvcral other old liooj^s, wherein it
is laid (lown iiH a rule that deer anMiot distrainaide; and the rase of Matlixke ».
Eastley, 3 J.ov. 227, where it was holden that treHju'SH will not li*; for deer unless it
ai)liear8 that they are tamo and reclaimed. They li]<ewi8e cited 3 Inst. 101), 110, and 1
Hawk. P. (,'. !tl to prove that it is not felony to take away deer, conies, etc., unlesg
tame and reelaiiiieil.
I do admit that it is generally laid down as a rule in the old books that deer,
conies, <,'ta., iwcfirw vnhn<i\ au(i that they are not distriiinal>le; and a man can only
have a ])n>iMM'ty in tliem ntlhnic lori. And therefore in the case of swans, (7 Co. 15,
10, 17, it*) and in several other l)0()ks there cited it is laid down as a rnle that where
a man hriuj^san action for chasing and takinn' -iway deer, hares, rabbits, etc., he shall
not say miox, bei.-ause he has them only for his game and pleasure ralione privileyii
whilst they are in his ])ark, warren, etc. l-<ut there are writs in the register (fol.
102), a book of the greatest authority, .'ind several othei' ])lace8 in that book which
show that this rnle is not always adhered to. The writ iu Iblio 192 is "quareolausum
ipaiiis A. J'rvij'it ct hitravil, i)i- cuiiicnlos hhos cepil."
The reason given for this opinion in the Itooka why they are not distrinable is
that a man can have no valuable property in Ihem. 15nt tin; 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 in a dog. Trover has been several times brought for a dog, and
threat damages have been recovered, liesides the nature of things is now very much
altered, and the niason which is givtjn for the rule fails. Deer were formerly kept
only iu 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 ])rotit; but now they
are frequently ko|ic in inclosed grounds which are not projjcrly jjarks, 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 ah imtsitato, though generally a very good one,
does not hold in the present ca«e. When the nature of things changes, the rules of
law must change too. When it was holden that deer were not distrai liable, it was
because they were kept j)rincipally for pleasure and not for prolit, and were not sold
j>nd turned into money as they are now. But now they are become as mucbasort of
bu8bnn<lry as horses, cows, sheej), or any other cattle. Whenever they are so and it
is universally known, it would be ri<liculous to say that when they are kept merely
lor profit they are not distrainable as other cattle, though it has been holden that
they were not so when they were kept only for pleasure. The rules concerning per-
sonal estates, which were laid down when personal estates were but small in pro-
jiortion to lands, are quite varied both iucourts of law and equity, now that personal
estates are so much increased and become bo considerable a part of the property of
this kingdom
From all those authorities drawn from the municipal law of different
nations, and conlii-med by the ancient lionian law, these propositions
are exceedingly clear: Tiiat, in respect to wild animals, if by the art,
and in<lustry of man they may be n)ade to return to a i)articular jdace
to sucli an extent that the possessor of that i»lace has a power and con-
trol over them wliich enable^5 him to deal with them as if they were
domestic animals, they are in the law likened to domestic animals and
are made property.jnst as much as if they were domestic animals; and
that property continues, noi3 only while they are in the actual custody
of the owner of that particular placje, 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 c(^ases only when this inten-
tion ceases; an«l the cessation of that intention is to be inferred, and
can only be inferred, from thecessat on of the habit of returning. When
they have abatuloned that habit and have returned to their ancient wild-
iiess, they cease to be property and may be taken by any person with-
out an invasion of property right. 1 may state another i)roposition fully
substantiated by these authorities. It is scarcely another proj)ositiou
indeed. It is ahuost the same; but the language is somewhat diii'erent,
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
153
fl'erent
sitions
le art,
])lace
Id con-
were
lis and
|s ; and
^stody
)!ii his
Mition
liuten-
|], and
When
wild-
witU-
li fully
Isitiou
3rent,
and T may be justified tlien'foie in statin;? it in a ditVeront form: That
wiierever man is capaljle of establis|ijii<;a liushandry in respect to an
animal commonly designated as "wild", such a liushandry as is estab-
lished in reference to domestic animals, so that iiecantalvetlie increase
of tlie animal and devote it to the iuil)lic benelit by furnisliin^ it to the
marketsof tlie world, in such cases the animal, altlioiiftli commonly des-
ij^nated as wild, is the stibj<'.ct of i)roperty and remains the property of
that person as lon^ as the animal is in the habit of voluntarily subject-
inn' itself to the custody and control of that ](erson.
Those are doctrines of the municii»iii law every where agreed to. There
is no dissent that 1 anuiware of in refereiu;e to them; and beiiis' the uni-
versal doctrines of municij)al law they may be taken, I apprehend, in
the absence of evidence to the contrary, as being tlie do(;triiie of inter-
national law.
Sir Charles Russell. You must not assume that I agree to that.
You say it is universally admitted.
Mr. Carter, 1 do not assume that you agree to anything.
Sir Charles ItussKLL. 1 should not have interposed but my learned
friend said it was universally admitted.
Mr. Carteu. I must underst uiid a permanent exception then to that;
but I cannot be very well deprived of the use of the word "general"' or
"universal", because it may be held not to include my learned friend.
Let it be understood that 1 do not mean to include him. So far as my
knowledge extends these doctrines are universally acceded to.
The President. Mr. Carter, what would be your legal <lelinition of
the word "husbandry" as you just used it. Would it be merely the
fact of gathering the iiuirease of an animaH
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 shee}), horses, cattle, or any other of our domestic animals.
The President. 1 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 1 allude are
api)ropriate.
There are certain observations which I shall venture to make respec^t-
ing the law so far as 1 conceive myself to have established it, so far
as I have stated it. 1 mean, in the lirst place, that it is uniform
in all countries and that it may therefore be taken to be international.
Second, that it is not founded ujjon legislation, but upon the
principles of tlie law of natuie; declared by the decisions of judicial
tribunals as founded upon the la >v of nature; that that doctrine is made
to turn upon the existence of an animus revertendi ; but 1 may say that
this nnhmiH revertendi must be of itself wholly unimportant. Jt is indeed
a mere fiction anyway. What do we know about the animus of one of
these wild animals? All we know of the intention of the wild animal
is that exhibited by its habits; and indeed the law says that the inten-
tion is to be inferred only from its habits. As hmg as the habit of return-
iu(f exists, the intention exists, and when the habit of returning ceases
then the intention to return is held to cease. Of whar consequence, in
itself considered, is this habit of returning, unless it has some social
I
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■:i-, ;
154
ORAT, ARGUMENT OF JAMES C. CARTER, ESQ.
uses imd purposes? Why should it be said that a wild animal is tho
Hultjcct ot juoperty if lie has the habit of returning to the same place,
and is not t he snbjectof property if he has not that habit, and ceases to be
the subject of property when once he has lost that habit? Why shoidd
we say that? There must be some reason for that. Can it be anytliing
else tlian this tliat the existeii(;e of the habit entiblea man to ti'eat the
animal in th(^ same way as he treats domestic animals and to make
the animal subserve the same useful public and social puiposes which
domestic animals subserve? Plaiidy 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. Tlie law, however takes notice of the
exception where those animals have been so far reclaimed that tliey will
continually and habitually resort to a ])articular 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 i»articular 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 tiiey resort to have the right of
l)roperty in them he will devote himself to the business of re<'laiming
those animals; and conse(iuently society will be supplied witli 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 tlie industry, and the
labor which is expended upon them; and being that j)roduct, the bene-
fit of it is properly awarded to the person who exhibits that art and
industiy.
The Tkksidknt. Do you mean to say that the seals reverted to the
Pribilof Islands on accoixntof the industry carried on there?
Mr. (Jauteb. Yes.
The Pkesident. Perhai)s you will come to that later in your argu-
ment.
Mr. (3ARTE15. I hope my argument will not be anticipated. I shall
not fail to comi)Iete the analogy. I am now looking to these t)ther
instances. Take deer. Why is it that as long as deer are kept for the
purposes of si»ort the law will m)t regard t'tiem as property? Because
as long as they are kept for such purp'.ses they subserve no useful
social purpose; but the moment a man undertakes to reclaim deer, to
take care of them, to feed them, to tnat them as lie does domestic ani-
mals and to supply the markets of soidety Avith venison from them, he
is awarded the riglits of property in them. That is because he is doing a
useful public service ; because it is a public service that would not be per-
formed unless it was paid for, andbecaiise 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, Xotliing can be more wild in its nature than a
bee. That nature is not in the sligiitest degree changed when a hive is
put inside of a box on the ])remisesof a private individual; and that is
all it is necessary to do. But what is the consequence of that? It is
that a supjtly of honey may be taken from that a limal, and a much
greater supply than if you were driven to hunt through the woods to
find hives. The conse(|ueiu',e is that when that hive sw-'rms. the swarm
can be taken and put in another box aiul thus the nun.ber of swarms
be multiplicdindelinitelyand the product of honey indeflni!^eiy increased.
That is a gr^at service to society. It furnishes it with an aiti(!le of great
utility which otherwise it would not have, or would not have in any-
thing like the same degree of abundaiu-e; and therefore the art and
industry, simple though it be, which is expended upon those particular
ORAL AHGUMENT OF JAMES C. CARTER, ESQ.
155
I sliall
ft otlier
or the
cause
useiiil
eer, to
it' aiii-
'111, lie
loinga
)e per-
by the
labor,
than a
liivc is
that is
It is
much
)0(ls to
swarm
swarms
leased.
>t' groat
iu auy-
rut and
iticular
bees, is rewarded by assigning to the jiosscssor of tlie place wiierc tli.i
hives are u riglit of property in the bees. Wlieii a iiive swarms he can
l)ursue it away from Ids own premises upon tiie premises of anittlwr
man. It remains his property: and, asa]>pears from the tlecision which
I read to the learned Arbitrators, if tlie bees go onto tlie premises of
another person who will not permit the owner of the swarm to go there
and take tliem, they still remain liis property; and if tliey are api)ro-
l)riated by the owiua- of the land where they take refuge, he is guilty
of a trespass.
All of those privileges are awanh'd to the owner (tf bees as a reward
and encouragement to him for protecting the bees. It is an ai»i)eal to
the great motive of self-interest so jiowerful in human nature, and which
is the foundation of a great part of all the blessings of society. It is (-idl-
ing into activity a care, inthistry, labor, and diligence which otherwise
Avould not be exercise«l.
1 might add instances of other animals; but the learned Arbitrators
will perceive what the rule is which has been establislnd, the dilferent
animals to which it is applied, and the obvious grounds upon which the
doctrine is based.
2sow let me see whether those doctrines ai)idy to the case of the fur-
seal or not. It is only necessary to allude to a few of the characteristics
of the seal. In the lirst jtlace he comes upon the I'ribilof Islands v(tlun-
tarily, and there submits himself absolutely to the contiol, custody, and
dis])osition of the owner of that place. lie is defenc<'less against man.
Still he voluntarily comes there and submits hiniself to tlie power of
man. In the next place, after migrating from that place he returns to
it in obedience to the most im])erious of all animal instincts. Nothing
can stoj) him unless he is driven away. Although his absence from
that spot is very prolonged and the distances over whicdi he travels
very great, that instinct to return is never for a moment absent. It is
superior — very far superior — to any instim^t that a deer may have to go
to a particular place, or the wild swans, or geese, or pigctuis, or animals
of that sort. Seals will go through all ((bstacles and all dangers and
certainly return to that sjjot. VVliat is the social utility to sul)serve
Avhich tliis habit offers an opportunity? -Man is enabled by means of it
to practice a species of husbandry. ITe can take the annual increase
of that animal without in any respettt diminishing its stock. In other
words, he can deal with the animal i)recisely as he does with domestic
animals and juecisely as if tin; animal were domestic. Therefore we
tind here all the elements, all the foundations, upon which as Black-
stone calls it, property per iii(li(stri(im stands. You may ask what care,
what industry man practi(U's in reference to t he 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 uiuni a very little reilectioii i he degree of care and industry
which is exercised. In the tirst place the United States, or Russia
before the United States, carried thither to these islands several hun-
dred ])eo])le, and instituted a guard over those islands and preserved
the seals and ])rotected them against all other dang<'rs except that of
Ix'ing slaughtered in the manner which 1 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 exiK'iise is undergone in extending this sort of protection over
them. In the next place, and what is particularly important, the
United States, and Kussia before the United States, practiced a self-
%
-3*'
•Ifj
i
■I
', :ii
ill
,-■ , F
.'■■ ' *
1:1
m
i ;•
156
ORAL AltOTTMRNT OP JAMES C. CARTER, ESQ.
r
:il-
(Icniiil, iiti iil>s| iiu'iK f, ill ici'otciM r to that iiiiitiiiil. Tli(>,v did not clul)
liiiii the inomcnt lu^ laiuUMl siihI apply liiin to tluMr purposes indiscrriini-
iiiitely, male and ItMnale. Tlicy did not talvc one in tiiis way. Tliey
(iaii'tnlly avoided it. Tlu'y piiuUic^edascirdcnial. And tliat self denial,
and tliu care and industry in otiier respe(;ts whieii I have mentioned,
lead tliose seals to eome to those islands year after year, wliere they
thus sid>mit themselves to liiunan power so as to enable the whole
benefit of theaninnd to be applitMJ to the uses of !'»an. Let n)eask what
wonlil have been the case it this eare and industry had not liave been
applied? Suppose the art and industry of the IJidted States and its
self-denial had not been exerted, what would have been the result?
W'e have only to look to the fate of the seal in other (pnirters of the j^h>be
where no such care was exerted, to learn what would have been the result.
They would have been externunated a hundred years ago. That herd
Avould not exist thei'e now, and could not exist. Kvery marauder who
thoujiht he could male a profitable voyaj^e by descendiu};' upon the
islands in the hope of i^etfinj;" seals would have j;'one there and killed
indiscriminately all that he could find. Tlie 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, 1 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 millions — is the direct product of the care,
industry, lab(»r and expense of the I'nited States; and they would not
be there except for that care and industry.
What is c<»iitended for njmn the part of (Ireat Britain here is the
ripht 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 ]>rey upon them, except lor the exercise of that care and.
industry. There is no (^(Uitradicting thati)osition at all. It is not sus-
eei)tible of denial, or of doubt. It is absolutely certain that this herd
would not exist a day on the l^ribilof 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 llussia, 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 othci aninuUs to which I have alluded are sutlicient
ftroun<lsand reasons why an award of property should benuule to those
who exhibit them, why should it not be made in this case? Therefore
I say that ui)on the plain doctrine of the municii»al law, the position of
the United States, that these seals are the subject of property, and that
they belonj; to the United States, not only while they are on the islands,
but at all times during their mij^rations, near or remote, is fully estab-
lished.
I might proi)erly leave the argument here, The propositions in respect
to property which 1 have shown to be true in reference toother 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
OKAL ARGUMENT OP JAMK8 C. CARTKK, ESQ.
157
>ect
lulls,
but
phey
lose
its;
I say
jany
Is of
|e of
the other animals, like wild f^eese, and swans and deer, tliat tlie dispo-
sition to return lias been created l)y man. Siiitposc it was created by
man in those instanix's, and not created by man in thecase cd" tin- seals.
Woidd that nialu! any dilVerein'e? No. The public and social benelits
which result fnun an aw aid ol' property are tlie same in the one case
as in the other. But it is n- t true, this siij^'icstion that tiie instiiu-t is
creatiMl in the case of tlie other animals. The instiiiet to return is nat-
ural in all the cases alike. Man only ads upon it; and he acts u|iou it
in the one ease just as he acts inuui it in the other. If there was not a
natural instinct to return in the t-ase of wild j'eesc, and swans, they
eoiild not be made to return. It is their native (jualities, their natural
instincts, wlii(!h are acted iip(»n by the art and indiistiy of man and
which j)rodu(M' the useful result; and they are acted upon in thecase of
the seals Just as nnu'li. Of course it is title that the wanderiiij;s of the
seals from the place to which they tlius resort are much wider :!iid more
protracted than in thecase (tf the other animals; but has it e\er been
sujfj;ested in the ease of the other animals that the (luestion wlielher
an award of projierty could be made would d»^i)cnd upon the extt'iit of
their wanderinjjs? Not at all. No matter how widely they may stray,
no matter how long they may be abscMit, so lonj;' as you <'an say that the
aaiiniid rccertendi renuiins, so long the property exists and will be i)ro-
tected.
in respect to seals, we may say, with a certainty and absoluteness
which cannot be declared with refeii'iice to other animals, that the ani-
mt(.s rerertendi does always exist. It may be said — indeed, is said, as \
observe, in the argument of my learned friends on the otiier side — that
the seals do not return to the saints i»arti{!ular spot. It is said that a
seal may go one year to the Island of St, (Jiecuge and in another year
be may go to the Island of St. Paul. Of what consequence is tliat'^
Mr. FosTini. That is not proved. Jt is a mere suitposition.
jNIr. Carteu. That may well enough be true, for aught we know. I
shall not take pains to undertake to show that it is not true; fiu' it is a
circumstance of absolutely no importance. The only imi>ortant thing
about it is that the animal should retiiin to the human owner; that he
should return to the custody of the owner who has exhibited the caro
and diligence which enables him to put that return to advantage. All
these islands are the property of one jjroprietor, and all the bem-lits
Avhieh can jwssibly aiise Irom the return of an animal to a jiarticuiar
l)lace, and a submissicui of himself to the power of man, can be reaped
in the case of the seals.
It is suggested that we aie not certain that the seals that come this
year are the same seals that were there last year, and it is siigges(«'d
that there is an intermingling between the two herds on the two sides
()f the Pacific Ocean ; that seals which frequeut thet.'ommaiider Islands,
belonging to Eussia, are found mingled with tin; iierds 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 iiistory. it is against
everything wlii(di we know in reference to the hahits of this ])arlicular
herd. All jtarties were agreed, until it became of some importance to
suggest some failure of identification, that this particular lierd that
visits the Pribilof Islands eonlines itself to the western coast of America.
It goes nowlien^ else. These are its sole places of resort for the pur-
poses of breeding: and it is ])roved with a certainty whicli any court of
Jiistic*' Would act npon anywliere that anyseal I'oimd upon liie wesleiu
coa- 1 of Anici ica belongs to that particular herd and makes those islands
iiLa Ixumu.
;t
• "
158
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
:ii!
I
I"
The Prestdi;nt. Mr. Carter, would you call the Pribilof Islands the
home of those seals. You have explained the animum reiwrteudi in such
a way as to lead us to suj>pose that the anin)al which reverts to its usual
haunts, reverts iii some njeasure to its home. Would you say the same
for the seals?
."Mr. Carter. I cull the Pribilof Islands *'.eir home. I am not par-
ticular about tlie name which is appli<''I to it. You may call it tiieir
place <'f resort, their breeding; yrou'.d, or Avhat not. Whjitever you
choose to <;all it, the fact is clciir tliiit tliey fio theie for the jmrposes of
breedinji'; tliey stay there live months in tiie year; they brin<f forth
their yonnf>- there; and you can yo there an<' easily separate the sui>er-
Huous males from the lest of the herd, for the purpose of affording
them to the commerce of the world. The name is of course unimpor-
tant. It is th(? fa(;ts whi(;li deteiiiiiue the (luestiou.
I have said tliat these docti'ines are clear upon the settled rules of
numicipal law; and for reasons whieh we find )>lainly apparent in the
doctrines of municipal law. lUit I am not disposed to leave the ques-
tion there; because the arj^nnient can be stren}«thened. I have said
nothing- about the orijiinal princij)les and rules u})on which the institu-
tion itself of pioperty stands. The institution of i>ro])erty is anterior
to municii)al law, or anterior, at least, to any consitlerablc dej;ree of
development of that law. It is assumed to exist by municipal law; and
it is oidy in these conipaiatively 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 tlie municipal law. Tlier^i are those insto'ices; but
wiiat il" we siionld impiire into the foundations of ])roperty severally,
and see what tiie reasons are which support it.' Why is it that the
in.stitntion of i»ro])erty exists at all? Why is it that one man is per-
mitted u> own one hundred thousand acres, if you please, of the earth's
surface, and another man have not where to lay is head? W^iiy is it
that so(!iety ])erinits one man to lu)ld. and defends him in holding;, store-
houses, wliole majiiizines of ]»rovisioiis while another is starving for
hunger? Those things cannot be arbitrary. Such an institution can-
not be the result of chance, cannot rest ui)oii any arbitrary reasons. It
nnist stand upon great social grounds; and therefore it is very perti-
nent to in(iuiie what tiose social grounds are.
1 therefore invite tlhs Tribunal toaccomi)any me in a somewhat larger
im[uiry, very i)ertinent to the matter which is now before them, — an
in<iuiry as liroad as the social interest of all nations, which this Tribunal
is supposed to represent.
'Hie PiM'.siDHN'i'. Vou want to take us into a discussion of socialist
tlieoiies or princii)Ier; '
Ml-. ( \MMi:i,\ i do not object to discussing socialist theories, provided
they are pertinent, and 1 <'an rediue them into some brief compass.
The. President's question reminds me of au observation of one of his
countrymen, called ilbistiious by his friends, and, 1 sii])i)ose, <len()unced
as not(»rious by his enemies. It was the Frenchman Prudhon, wh(» said
that proi)erty is rol)bery; and he was right. Pr(»perty is robbery,
unless yon can defend it on some great social grounds, and suDiiDit it
upon the basis of /^reat social benefits, if you can show that it is
necessary to society, necessary to order, necessary to civili/ation, and
necessary to progress then you vau defend it. i)therwise, it is robbery.
What is proiK^rtji? It is sometimes said to be the right to the exclu-
sive cnioyiucdt of a tiling; bat that ratlxM' i .riicat<'s the jural ri.'iht
which belnii-is t.o it and is atto bed to il, aud not the tiling itself.
ri;rlit
itscli;,
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
159
What is it? I tliink it is well exi)rosso(l by one or two writers to whom
I will call iittejition. It is very hard to defuie what propei-ty is. We
can feel it; it is hard to define it.
S«vii>ijy .says (iia^e 51 of onr printed Ar,i;iinient) : "Property accord-
ing to its true nature, is a wideuiny of individual power. It is, as far
as tangible tilings are concerned, an extension '>f the individual to
some part of the material world, so that it is attecteil by his ])ersoiiality'''.
And the philosopher Locke expresses the same iJea. lie says:
Tho fruit or venison which iiunrishcs the wild Iiitliaii niuHt he his, iiiid so his,
i.e., a part of him, that another can no longer have any right to it, etc. (Civil
GovcrnnuMit, CIi. \', v^ L'5.)
A German writer of great distinction, Ihering, gives substantially
the same deliiiition of it:
In making thoiihicct my own I stanijied it witli the mark of my own jicrson ; who-
ever atta<'ks it a( tucks me; the hlow struck it strikes me, Tor I am jiresent in it.
Pro])erty is l)iit tlie peripliery of my person extemled to tilings. ( Iheiiiig, iiuoted hy
George 15. Nevvcomb, Pol. Science Qiiiirteily, vol. 1, p. 004.)
That is a very hajjpy detinition of what projierty really is. It is a
])art of the person, and whoever touches the property of a ])er.son
touches him. Whoever timches the property of a nation touches the
natioii itself.
That is a descrii)tiou of the thing itself. Xow, what is the right on
which it is Ibundcd ? In going into this inquiry as to what the right of
])roi)erty is founded upon, I am not going to deal with any abstra(rt
(piestion; nor ant I going to deal with (picstious that have m»t l)ecn
considered as within the province of jurists. On tiie contrary, I am
entering on a question which has been, from the lirst, considcied ju'cul-
iarly the province of jurists, and csi)e<'ially of jurists dealing with the
law of nature and tin; law of nations. The great writers upon that
law, beginning with (Ji-otius, have considered that no ethical system
could be complete, and, consequently, that no system of the law of
nature and luitions could be com])lete, which did not deal with the insti-
tution of property and the foundations upon which it it rested. And
in w'hat I am going to say, T shall do little more than recall views which
have been before stated and develo])ed by very many diflfei'cnt writers.
Possibly I may carry tlieni a little fiirthei' in the deve]oi)nu'nt; but for
the umst part I shall only repeat what has been .said before.
These writers, in endeavoiing to ascertain the foundations of the insti-
tution of property, take tirst into consideration its universal prevalence
everywhere all over the globe; and in cAcry stage of human history,
and then recognize in this the truth that it is and nnist be founded
npon the facts of man's nature, and tiie circumstances, the environment,
in which he is placed. They tell us that nan is by natnre a social ani-
nud, and must live in society, and that so(;ietj' is not jtossible unless
we can have order and ])eacc. Whciever there is anything desirable
to nuMi, wherever there is an obie(^t of hunmn desire, of which the suj)-
jiiy is limited — where there is not enough for all — there will necessarily
l)e struggle and c(jntention for the possession of it; and if there were
nothing to prevent it, those who had the most ]>(twer woidd eiigro.ss
the most valuable tilings of the \\<»rhl. Theic wuuld be constant war-
fare for tiie possession of desirable tilings where liiere was noi enough
for all, uidess there were some rule and some means by which (}mt war-
fare should be ju'c veil ted. Therefore, property at on<!e becomes a neces-
sity, in order tiiat therci may exist jieace and order in human society.
We may say, therelbre. that the fniiiidation (»f property, its liisl a?id
original tbnndation, was in iitcr.s.siiy, the necessity of jieace and oiib^ ;
i
i
m
mm
%
y>i'w-\
ik
.1
'A
\
'(
.1
1
f
M
1
T
160
ORAL AliGUMENT OF JAMES C. CAKTEK, tfeQ.
:|'
and that necessity requires that property be carried to this extent:
that every object of desire, the svpply of ichich is limited, must be oicned
by somebody. When yon have tliat state of tilings, you liave peace,
and until that state of tliin}>s is established, you cannot have peace.
Therefore we find that everywhere where men are formed into huinau
societies, a determinate owner is assigned to every object of human
desire, tlie supply of which is limited. Those views are well expressed
in the early part of JJlackstone's Commentaries on the Law of England.
He has a very elegant chapter, to wiiich I would refer the ])articidar
attention of tlie nicnd)ers of the Tribunal. I shall read here only an
extract from it, on page 54, of our i>rinted Argument. lie says:
Agaiu, there are other thiiij^s in wliich a periu:ui(mtpro]>urty may Hubsist, not only
as 1() tho teiii]>orary use, Imt also the 8i>li(l Hubsliince; and which yet would fre-
quently he iouiid without a i)ro]>rietor had not the wisdom of the law provided a
remedy to obviate this inconvenience. Such are forests and other waste jjronnds,
which were oiuitt<'d to be a])propriated in the fi;eneral distribution of lands. Such
also are wrecks, estrays, and that species of wild animals which the arbitrary con-
stitutions of positivt^ law have distinguished from the rest by the well known appel-
liition of {laiiic. AN'ith retjard to these and some others, as disturbances and quarnds
wonhl frequently arise anion<>; individuals, contending about the acquisition of this
species of projierty liy lirst occupancy, the law has therefore wisely cut up the root
of dissension liy vesting the things themselves in the sovereign of the State, or else
in his representatives appointed and anthori/ed by him, being usually the lords of
manors. Ami tliiis the legislature of England has universally promoted the grand
ends of civil society, the peace and security of individuals, by steadily pursuing
that tvise and orderly maxim of aasiyniiKj to erirytltiiKj capahlo of owiterxltip a legal and
determiiiale owner.
Sir Henry Maine has also made an allusion to this doctrine, which
is well worthy of consideration. He speaks of this ride of assigning
a determinate owner to everytliing cai)able of ownership, m)t simjily
as an original tciiture in human S(»ciety, but one which IVom 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 practica I 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 lirst jtossessor
with dominion over eomniodilics in which no prior iiroprietorsiii)) has been asserted.
The sentiment in which tliis doctrine originated is absolutely irreconcilable with
that infrcqueni'V and uncertainty of proprietary rights whicli distinguish the begin-
ning of civilization. The true basis seems to be not an instinctive bias towards the
institution of projicrty, but a presnmption, arising out of the long continuance of
that institution, that ereri/lhinii oki/IiI to have an owner. When possession is taken of
a "res niiUiiiH", tliat is, of an "bjrct which is not, or has never been redu(!ed to
dominion, tlie ])OKsessor is ])ermitted to beconui )iroi)rietor 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 ri.i^hts of ]>riiiierty except the occupant.
The occupant, in short, bccoinrs the owner, bermise all things are ])resMmed to lie
Boniehoily's jiroperty, and liecanse no one can lie iminteil out .'is having a better right
than he til the proprietorsiiii) of this |iarlicular I liing. (Ancient Law, L'h. VIII, ]). L'lW.)
And Lord (Jhimcellor Oliclmsford made use of the same doctrine in
rendering the decision of the House of Lords in the case, very laniilitir
to my iVieiids on the otlier side, doiibtU'ss. of 15 lades v. Miggs. That
Avas a case wlicie a trespasser entered the grounds of anotlicr wlierelie
hiid no right, and killed fsome game tlieie; and the (piesf ion was, to
wluun till' game belonged, whether to the trespasser, or to the owner of
the property. Thejtulgment of Lord Chancellor (Jhelmsibnl proceeded
along tliis line: he says, everything that is capable of owneishii> must
be owned by somebody, and tlierelbre in this ease, this dead gamenuist
be owned either l)y the man w lio killed it . the trespasser, or by the ninn
upon wlinse :.:rnii!|;! i( wa-' killed, lie s:n> it c;Muiot he tin' pfnpeity
of the Ircspassiv, for a man caiiiiut be permitled la work out lor him-
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
161
IIIVIO-
lt'ct«il
sscssor
Herti'd.
w i th
m'f>iii-
■ds the
,mco of
ki'ii of
•etl to
at all
n the
pant,
tit he
rijilit
.•-•lit.)
1110 ill
iiiliar
Thsit
■relio
as, to
iierof
LHMled
must
must
man
IpiM-ty
him-
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 upoa which I am insisting, that the necessities of society require,
and always have required, that everything should have a determinate
owner, is one which is everywhere received, and even so far received
as to be made the foundation of judicial decision.
[The Tribunal thereupon took a recess.]
The Tribunal. Upon resuming.
Mr. Carter said: In the inquiry as to the origin of the institution
of property, I had reached the conclusion that the original basis of it
was the necessity of peace and order, which is of course an absolute
requisite of human society. And therefore the institution of proi)erty
is coeval with the existence of human society upon the earth. That
institution stands upon the immutable basis of necessity ; and, to enipU)y
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 jM-ace
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 beiiuj properh/f
All things are not thus capable; and we must, therefore, clearly under-
stand I he requisites wliich enable anything to be the subject of ]»ropcrty.
js'ow, tliere are three things necessary in order that property may subsist
iu anything; first, the thing, in order to be a subject of jiroperty, must
ly e an object of human desire; that is to say, it must iiave a recognized
^yUity. Property cannot exist in noxious animals, such as rejitiies, or
j n 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 ])lace, 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 ownershi|) ot sudi
things. Then, thirdly, the thing must be susceptible of exclusive appro-
priation. Take animals called game, for instance. There is no (jues-
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 slumld attempt to do it to-day, they would
escape to-morrow, and he could not re capture or identity the fugitives.
The three fundamental conditions of projierty are, tiierefore, ,/^/•.s^ that
the subject of it should be useful; second, that it should be limited in
supply; and, third, that it sho.ild 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 apjieal to exjjerience. We cannot now
find, we could not find, in any stage of civilized human soiricty, 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 uot only of property as between individuals, but also
of property as between nations; for the same necessity of peace an<l
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
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B S, PT XII-
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ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
ii
tiiid contention. If there is no rule to settle disputes, nations would
be always at war; and consequently we find that, in respect to such
tilings jis are not susceptible of ownership by individuals^ if they are
objects of desire, if the 8ui)ply is limited, and if they are cai)able of
exclusive appropriation, they nuist 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, tiiere were vast tracts of the earth's surface which became the
object of contending ambitions, and there would have been widespread
Avar among the diHerent nations had there not been some rule by which
inteiiiational strife could be appeased, a rule which ordained that every-
thing must be owned by somebody. It is there that we find the eflicacy
of the title of first discovery. The rule was early established that the
nation tiiat first discovered any new region should be regarded as hav-
ing a fixed and pertect 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 tlie 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 PiiESiDENT. Where did you find that rule? Did the mere fact
of discovery confer a title? That is not the law as it stands now. The
Conference which mei in Berlin two years ago held that discovery
would not create title without occupation.
Ml'. (Urter. 1 think that doctrine does not vary from the one I am
endeavoring to state. Of course, if a nation has discovered a new
region ami lias abandoned all intention of occupying it, it vshould 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 sntticient lapse of time, to occupy the tract would
be considered as a relinquishment of the right to occu])y.
The Pk1':sii)KNT. The i)ractical consequences are the same.
Mr. Carter. Yes. I fully agree to the apparent modification sug-
gested by the learned President. Authority for the view I have just
taken will be found frequently stated by the waiters on the law of nature
and the law of nations. It is very clearly put by Chief Justice Marshall
of the Sui)reme Court of the United States, in the noted case — in
America, at least — of Johnson V. Mcintosh, which will be fouud at page
5G of our printed Argument (quoting):
As tlie ritjtlit of society to proscribe those rules by which property may be acquired
nii(\ ])ri'.seive(l is not, and cau not bo, drawu into (|iiGsliou; as tlie title to lauds,
especially, is, and must bo admitted, to depend entirely on the law of the nation in
■which tlicy lie, it will be necessary, in pursuing this in(|niiy, to examine, not simply
those priiiciitlos of abstract, justice which the Creator of all thinji's has impressed on
the niiiid of iiis creature, man, and which are admitted to regulate in a sj^reat degree
the rights of civili/cd nations, whose ])crfoct independence has been acknowledged,
but those prim/iplcH iilso whicii our own Goveruuient has adopted in the particular
case, and gi\ en as the rule of decision.
On the discovery of tliis immense continent, the great nations of Europe were
eaRer to apjiropriate to themselves so much of it as they could lespoctivoly ac(|uire.
Its vast extent atiorded an amjile tield to the ambition and enterprise of all; and the
character and reliKi'Ui of its inhabitants alTorded an apology foi" considering them
as a people over whom the superior genius of Europe miglit claim an ascendency.
Tht^ potentates of the old world found no dilliculty in convincing themselvc^s that they
made ^ull1l(^ c()mi)ensation to the inhabitants of the new, by bestowiug upon them
civilization ami Christi.niity, in oxehini2;o for unlimited inde]icn<lence. Ihit, as they
were all in pursuit of nearly the same ot.ject, it was nei'essary in order to avoid con-
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
163
^1 sug-
re just
laturc
IV shall
tse — in
Lt page
[cquired
lauds,
^tion in
simply
bsscd on
, degree
hedged,
Irticular
|)e were
K(\uire.
iiudthe
ig tlieni
idency.
Imt they
>u tbem
as they
loid con-
flicting settlenientH, and consequent war with eacli other, to establish a princi])l«
wliicli all should ackn(>\vleilf;o as the law by which the riglit of acquisition, which
thty all asserted, slmuld be regulated as i)etweeu themselves. Tliis principle was
that discovery giivo title to the government by whoso subjects, or liy whose author-
ity, it was ii.ade, against all other European governments, which title might be con-
siimmated by possession. The exclusion of all other Europeans necessarily gave to
tlie nation niakiug the discovery the sole right of acquiring the soil from tlie uatives
and establishing settlements upon it.
It was a rigiit 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
1 may meution as having a tendency to support the line of argument
which 1 am foHowing. It will be remembered that at this period, when
the riches of the >'ew 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 renu'ml)cred that at that time the authority of the Papacy
was more highly held than now —
The PRESIDENT. It was more universal.
Mr. Cahteu. 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 insignilicant? No, it was respected by a great many, and it
was not so absolutely unfounded and ])reposterou8 as some at tlie ])re8-
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 ju-event strife, and they prove that
we must find an owner for {everything.
But, so far as the i>revention of strife is concerned, it is not necessary
that private, individnnl, 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 periods 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.
W^hence, then, have we derived that other form of property called
private, individual, property? It docs not proceed upon the ground
of the necessity for the prevention of strife and warfare; it comes from
another circunistanco 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. Ue has a desire to establish a family and to increase
the number of those dependent upon him, and to these ends he
is ambitious for more and more property, and it is upon those 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 introducition and
UKe of money. All these elements are features of civilization; they
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ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
make their appearance simultaneously, and gradually, and by degrees,
they cbaiige the face of the earth; and tliey 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 it is to this fact that I wish to ask your attention. Under
barbaric conditions men live upon the spontaneous fruits of the earth
and upon such animals as they can obtain by hunting. They cultivate
nothing; the earth affords them support, but it is a support sutticient
for but very few, and there can be only a sparse population under these
conditions. But as civilization advances increasing numbers make their
appearance upon the earth, and these increasing numbers must be fed.
The necessity of feeding them requires thfe 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
poimlation. Labor therefore becomes at once necessary. And how are
you going to induce men to laborf Society cannot compel them to it;
that is not practicable. The way in which they are induced to labor is
to promise tliem the fruits of tlieir 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 i)rivate 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 malce these weapons, those imple-
ments, that furniture, they shall be yours". Society everywhere says
to its members: "The productsof 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, whet her in the form of comnumity property, or private individ-
ual ])roj)erty, has its origin; and I now wish to aaysomething 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. Tiieie is no absolute right in any man to
anything on the face of the earth. The earth and all its Imunties 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 dis;jpi)ear 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
!i any
perty
trust
an to
were
0 this
1 til at
Nor
»erty.
cular
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! llow shall
men all over the earth be enabled to enjoy this beneficial interest wldch
njiture originally intended them to have in all the productions of the
eart Ut It is (through the instrumentality of commerce, wliich is another
result of civilization. It is by means of the exchange of ])roducts
between different regions of the earth, and between ditl'erent 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 liave these products exce])t through the agency of individual
property, or national i)roperty 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 peoi)le
living in the vicinity of the islandswhere they have their home. But how
were they used before commerce existed ? They were turned to account
only by the few hundreds, or thousands, of Indians who lived along tiiat
coast, and no other people were benefited, or could be benefited by tliem,
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 eventuallj' come into the possession
of the very i>ersons who want them, wherever those persons dwell. In
that way the general benefit of all mankind is fully and eftectively
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 cai)able 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 ])roducts 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 })ersons 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 1 have said that the title, whether of nations or of men, to par-
ticular things is not absohite, 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
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166
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
trust. Of conrso I do not moan a trust enforcible in an ordinnry
judicial tribunal, but a moral trust, and one which is, in a manner,
enforcible. And we shall see that tlie law of nature perfectly recog-
nizes that trust; for commerce is by the law of nature obligatory. Ho
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 beuelits. I may read from the authorities collected in a note
at page 01 of the printed Argument of the United States. And first a
l)assage from a work on the *' Kights 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 pfirticular dis-
position to every man; he also diversitied climatt's and the natnri' of Hoils. To each
conntry, to cjich region, ho assigned difVeivnt fruits and special ])rodtHtion8. all or
nearly all of which were susceptible of being ns<'d by man and of satisfying his
wants or his ideasnres. Almost all regions doiibtU'H.s ])rodiH'cd what was indispensa-
ble for the sustenance of their inhabitants, bui not one. ])rodnced 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 e.vtend com-
merce. Man, impelled by that instinct which leads liiui to seek iierluetion, created
now needs for hiuiself as he made new discoveries. He acciistonuid himself to the
use of all the productions of the earth and of its industry. The cottcui, sugar, coifee,
and tobacco of the New World have become articles of jirime necessity for the Euro-
pean, and an innnen.se trade is carried on in them. The American, in turn, can not
dispense with the varied productions of Euroj)ean 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 8[>eali, for the perforuiaiice of the duties of human-
ity. Connuorce 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. 02) says:
Skc. 21. All men ought to find on earth the things they stand in need of. In the
primitiv- state of conuuunion they took tlieiu wherever they ha]ipened to meet with
them if ai'other had not before ai)propriated them to his own use. The introduction
of dominioi-' and projterty could not deprive men of so essential a rij;ht, and, conse-
quently, it can not take place without leaving them, in general, some means of pro-
curing what is useful or necess.'iry to them. This means connnerce; by it every man
may still supply his wants. Things being now become! jiroperty, there is no oi)taiu-
ing them without the owner's consent, nor are they usually to bo had for nothing,
but they may be bought or exchanged for other things of equal value. Alen are,
tlnrefore, under an obliyitlion to carry on that commer(fe with each other if they wish
not io 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 j)roduee everything
necessary for the use of man; one country abounds in corn, another iu 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 e<unnioii mother, will be fulfilled. Fur-
ther, one country is fitter for some kind of [troducts than for another, as, for
instance, fit tir for the vine than for tillage. It trade and barter take place, (svery
nation, on the certainty of procuring what it wants, will em])loy its lands and its
industry in the most advantageous manner, and mankind in general prove gainers
by it. Such are the foundations of the general obligations incumbent on nations
reciprocally to cultivate commerce.
And I niijiht greatly amplify this. I will read a passage at the bottom
of page 02 from Felice on International Commerce (quoting):
The need of this exchange is based upon the laws of nature and upon the wise
arrangement which the Supreme Being has established in the world, each region and
each portion of which furnishes, indeed, a great variety of productions, but also
lacks certain things required for the comfort or needs of man; this obliges num to
exchange their commodities with each other and to form bonds of friendship,
whereas, otherwise, their passions would impel them to hate and destroy eacli
other
The law of commerce is therefore b.ased upon the obligation under which nations
are to assist each other mutually, and to contribute, as far as lies iu their power, to
the happiness of each other.
ORAL ARGUMENT OP JAMES C. OARTEH, KRQ.
167
And Levi, in his work upon International Coiiiniercial Law, says:
Commerce is a law of nature, and the right of trading is a natural rij^lit. Hut it
is only an imperfect right, inasmuch as each nation in the solo jtidgo of wlmt in
advautageoiiN ur diaadvantageoua to itself; aud whether or not it be <'oiiv('iii<'iit lor
her to cultivate any branch of trade, or to open trading intercourse Avitli ;niy 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 lor the benefit of lr;i(ling nnd
traders. Yet the rel'usal of this natural right, whether as aLMin.st one inition only,
or as against all nations, would constitute an olFense against inlerniitioniil law, iind
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 tlie
proposition, tliat no nation has an absolute property in any of the gifts
of Providence, but that they are given iu part u])(ni a trust to share
them with others. Let me suppose an article like India rubber, which
has become a sui)reme necessity to the human race all over tlie 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 IVoin 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 intcifere
and take possession, if necessary, of the regions in which that article
80 important, so necessary to mankind, was alone grown, in order tliat
they ndght supply themselves; and the ground of such action woidd
be that the nation which had possession of this product refused to
perfinm 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 instaiK^es in
which one nation may justly interfere in the affairs of anotlier; and
there are numerous instances iu history in which such interferences
have been had. Take one instance, which is generally si)oken of as tlie
means adopted to "preserve the balance of power". When one nation
in Europe seeks to so extend itself as to threaten what has been styk'd
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
jierfectly 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 bi-nclits of nature were
originally given to mankind, and all the members of the human family
have a right to particijiate in them. Tlie collee of Central America
and Arabia is not tlie exclusive property of those two nations; tlie tea
of China, the rubber of South America, are not the exclusive ])roperty
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. Car'I'kr. 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
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ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
I
you can interfere. I do not dispute the right of a nation to say: "For
certain reasonable purposes we must interdict connnerce with sncli and
Kuch a phice." There may be {^rounds and reasons for tliat; there may
be reasons why a nation should refuse for a time to carry on commerce
at all; there may be exceptional cin^umstances which would entitle a
nation to act in this manner. But what I do asvsert is that where a
nation says: "We will forever exclude the world from i)articipating
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
interjjose 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 ujum 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 enterju-ise 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? 1 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-
cliarge. The nations of Europe say: "These vast tracts of the most
fertile i)arts of the earth, capable of affording measureless comforts to
mankind, and of sustaining a valuable commerce shall not be aHowed
to reniain 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 Confeience at Berlin
previously referred to by the President, and at which this point was
considered. He was understood to ask whether the doctrine now upheld
had been then settled as a principle of international law.
]Mr. Carter. I cannot s.ay ; but I am certain that the practice of man-
kiml from an early period of history has been based upon these princi-
ples; and unless these imncijdes are well founded, the whole course of
the settlement of the New World is indefensible robbery. What did
England do in the case of China in 1840, for instance? She made war
upon China and subdued her. Why? The real cause of war is not
always correctly stated in the pretext given for it, and in that instance
the i)retext was, I believe, some discourtesy which had been shown to
individnals, some maltreatment of British officials. But if we look irtto
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 Jis an offfence on the part of Great Britain. When a nation refuses
to perform the duties incumbent upon her in respect to the blessings
confided
nations.
to her care, there is a cause for the intervention of other
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
169
litO
Take tlie case of Peruvian bark. This uroduct is coniinonly rcjranh'rt
as absolutely necessary in the economy of society; it is a necessity for
the cure of certaiu diseases; it is a si>eciHc f(»r tlieai; tlicy will v;\ge
unrestrained unless you have Peruvian bark. Now, supiMjse the coun-
tries where it is grown should say that for some reason or otiier they
will not carry on connnerce; and not oidy that, but that they propose
to devastate the plantations where the bark is cultivated: is mankind
going lo permit that? 1 will refer to another and recient exiimi)le whi(!h
we read about every day in the newspa])ers. Wliy is Great LJritain in
Egypt maintaining a control over the destiny of that nation! What
reason has she for asserting a dominion over these ]M)or Egy|)tiansT Is
it be(!ause they are weak and delencieless? Is that the only reason?
No; I suppose tinit those who have thedestinieswiCireatliritain in their
charge <an make out a better case than that. Kgyi>t is the p ithway of
a mighty commerce; it is necessary that that commerce should be free
and unrestrained — that great avenue and liighway of trallic must be
made to yield the utmost benefit of which it is cai>able. If the Govern-
ment of Egypt is not capable of making it yield its utmost — if that
Government is incai)able of doing so, other nations have a right to
interfere and see that the trust is i>erronned.
The President. I am alVaid 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 jmint 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 vvhere a broad tract
of the ejirth's surface hapi)ening to be in the possession of an inhospit-
able nation, abounds in a blessing suflicient to attbrd comfort an<l conven-
ience to a very large part of mankind — will any one nuiintain tii it that
nation may, if she clioose, wholly withhold from other <;ountii( s the
benetits she is capableof conferring? If that is true, then all that the
writers ui)on 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 theae statements erroneous? I must appeal to some of
tUera. I may refer to Vattel. He says:
Sec, 203. Hitherto we have considered the nation merely with respect to ifHelf,
without any regiinl to the country wliich it possossea. Let us now see it established
in a country which heconies its own property and liabitation. Tlie eartii beh)n}^H to
mankind in general; destined by the Critator to bo their common liabitation, nnd to
supply them with (bod, they all possess a natuial ri^jiit to ii)luil>it it, and to derive
Ironi it whatever is necessary tor their subsistence, and suitable to their wants. (7th
Amer. ed. 1849, ch. XVIIl.)
I also quote from Bowyer, a distinguished English writer, and from
page 127 of bis "Commentaries on the Constitutional Law of England":
The institution of property, that is to say, the appropriation to particular persons
and r.ses 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 reaso'n to
make use of it to the best advantage of life and convenience. Tlie earth and all that
is therein is given to men for the support and comfort of their beiny;; and th ■ugh
all the fruits it naturally produces, and beasts it feeds, behmg to mankind in com-
mon, as they are produced by the spontaneous hand of nature j and nobody has
origiually 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 mt^n. there must
of necessity be a means to appropriate them some way or other before they oan be
of any use, or at all beueticial to any particular mau.
■TI
70
ORATi AROTTMENT OF .TAMKS 0. CARTER, ESQ.
If'
E read IVoin Serf^eaiit Stepluui's Coiiiriioiifiiiios on tl>o LawH of Kug-
land, Vol. 1, Book 2, i)a{,'e.s ir)J)-l(>5:
III tliH l)ejjiiiiiiii>; of the world, as wo aro informed by Holy Writ, tlio All Hoiinti-
I'lil Cr<^ator gave to iiiiiii 'Mominion over all tlio oarth; an<l ovof tlin linli of the hv;\,
ami over the fowls of the air, and ov<t ovmy living thiii;j; that movotli iijion
the carlli".
llciictt the earth and nil thingH therein are the (reiieral ]iro|i(rt,\ of all iiinnkind,
oxcluHive of other bcinKH, fnini the iiimicdiato >;ift of the Creatur. And whiUf the
earth coiitiiiiied hare of iiilialdtants, it in rcaHoiiahle to HUiiiiose tliat all wan in coiii-
nion aiiioii<r tlu-in, and that e\'ery one tuuk from the ])iil)Iie ntock, to his own use,
Hiieli thiiigB as hi8 iminedinte neceHBitieH required.
From Vattel, 7tli American P]ditioii, liook 2, 8«'ction 21:
All men oiiylit to iind on tsirth the things they Htaiid in need of. In the primitive
Htate of ('omniiinion, they took tliein wherevt^r they hiiitpem^d to meet with tliiMii, if
another had not before appropriated them to his own iiho. The introducttion of
dominion and property could not dejirive men of no essential a riylit; and, con-
Ne<|iieiitly, it eannot take place without leaving thoin, in general, some means of
proeiiring what is iisi^fnl or necessary to them. This mcfaiiH eonmierce; by it every
man may still Hii)))>ly his wiiiits. Things being now beeonie j>ro|terty, there is no
obtaining them without the owner's consent, nor are tliev usually to bo had tor
nothing; but they may be bought, or exthaiig(!d for other things of eipial value.
Mill are, therefore, muter an oblujatlon to carry on that commerce with each other, if
tlii'y wish not to deriatefrom the rhum ofnnlurv; and this obligation extends also to
whale uolionii or utalex. It is seldom that nature is scon in one place to produce
ever\ tiling necessary for the use of nnin ; one country al)oiinds in corn, another in
]iastnreH and cattle, a thiiil in timber and melals, «&c. If all tho.te countries trade
together, as is agreeable to human nature, no one of them will bo without such
things as are useful and necessary; and the views of nature, our common mother,
will be fuUillcd. Furtluu", one country is titter for some kind of products than tor
another, as, for instance, litter for the vine than for tillage. If trade and barter
take i)lace, every nation, on the certainty of procuring what it wants, will emi)loy
its lands and its industry in the most advantageous manner, and mankind in general
]irove gainers by it. Such are the foundations of the general obligations incumbent
on nations reciitrocally to cultivate commerce.
International law is filled with .statements of the genertil doctrine,
that the etirth was given to all mankind for their common bcnclit, that
that original gift cannot be changed or perverted, and that it mnst be
.so administered as to enable mankiml to enjoy tliat comiiwrn benefit;
that commerce is the means by which that common bciielit can be
extended to all nations, aTid therefore the carrying on of commerce is
an obligation resting npon 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, wt; are not
dealing in mere empty words. These things are not mentioned by
thent as meaning nothing. They mean what they say. They mean
that this is an obligation, and that it is an obligation wiiich in a suit-
able case can be enforced.
iSo much for the first limitation which I have stated property was
subject to, whether held 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 mnst be extended on just terms to
those for whose benefit it was designed.
I now have to state a second limitation upon proy)erty whether held
by nations or by men, and that is, that things themselves are not given,
but only the use of them. That is all — the iiso of thciii. The world is
given to be ii.sed, and oidy to be used, not to be (Icufroi/cd. ]Men bring
into the world tluur children, those who are to follow Ihem. They are
under an obligation to leave the means of sui>port to them, Is it
necessary for me to argue that no man has so absolute a lu'operty in
ORAI, AHdUMKNT OF .lAMKS C. CARTKK, K.S(^
171
i'o not
Ml by
iineau
suit-
' was
|l sub-
iis is
hwiier
Inis to
bold
Liven,
Vrld is
Ibvinin'
}v are
Is it
Ivty in
anytlnufj that \\v can be jum ntitted to destroy it? Surely that is not
necessary.
'I'iie I'ijKsiDKNT. UH et ahuti, say tbe Koniaiis.
Mr. CAitTKi?. Yes, nfi ct ahuti, so tliat a num lias power not only to
nse, but abuse. It is ffiven to us to use; it is not ^iven to lis to abuse
and destroy. Wo have no rij-ht to do that. Property is sometimes
said, in niunieii)al law, to bo rej;arded as absolute. If a man chooses
to tlirow away a bushel of wheat, there is nobody to <!all him to
account, 'i'he state does not call him to account. It doe,^ not do that,
be(;ause the ijrobability that su(!h a thiny will be doiie is extremely
remote. We can safely rely u|)on the sellish clement in human nature,
to prevent such ai'tion on any considerable scale. IJut sui)pose it was
a common thin,i;. and likely to oci-ur, would the hiws be silent about it
then? liy no means. I think 1 have some citations upon that very
l)()int. I will read from a writer of admitted authority, and that is
Ahrens. I read from page 97 of our printed argument:
Tlio (IcHnitioiis of tlio liLjlit of proiiovty Riven l)y jtositivo laws uonorally concede to
the owner tlie jiower todisjione of lii.s iiliject in iiii almost aliHoliite manner, to use
and altnHo i(, and even tlirouf^ii t'ai)rico to <l<intioy jt ; bnt tliis arbitiary power is not
in kei])in<^ wifli nalnral law, and ponitivo Iey,'islalion, olx'dient to tiio voire (d'<'om-
mon sense and reason in llie interest of society, has he<in oldis^ed itself to establish
ininierons restrictions, which, examined I'lom u philosojdiie. view of law, are tlio
resnlt of rational princiitles to which the right of proj)erty and its exorcise are snli-
jected.
Tiie jjrinciples which govern socially the right of property relate to Hnhstanre and
to i'orm.
I. As to snhstance, the following rnles may bo estaldishrd:
1. rroperlji exixln for a rational purpose aud for a rdtiniKil iinv; it is destined to sat-
isfy the varions needs of hnnian life; eonseciiu-ntly, all arhilnir!/ alinte, all arhilrnri/
(Icatritciion, are contnirii to rujhl (droit) and should be proliibiteil by law (loi). Hiit
to iivoid giving a false extension to this principle, it is important to recall to mind
that, according to ])ersonal rights, that which is committed within the splioro of
jirivato life and of that of the family does not como nnder the application of public
law. It is necessary, therefore, that the abnse be jniblic in order that the law may
reach it. It belongs to the legislations regulating the varions kinds of agricultural,
industrial, and connuercial property, ua well as to jienal legislation, to deterndne the
abuses which it is important to iirotect; and, in reality, legislations as well as police
laws, have always specilied a certain numltcr of cases of abuses. Besides, all altusivo
usage is hurtful tosbciety, because it is for the i)ublic interest that the object should
give the owner the advantages or the services it admits.
He refers also to the occasion of a debate npon the adojjtion of tlie
French Civil Code, and in respect to article 544, which defined property;
in which Najtoleon expressed energetically the necessity of HUi)pres8-
ing abuses, in this language:
The abiiwe of property, said he, shonld bo 8np])resRed every time it becomes hnrt-
fnl to society. Thus, it is not allowed to cut down unripo grain, to pull u]> fiinious
grapevines. I would not siill'er (hat an individual should smite with sterility 20
leagues of ground in a grain-bearing dopartuu;nt, in order to make for himself a park
thereof. The right of abuse does not extend so far as to deprive; a peui)le of its
sustenance.
All this supports the views which T am endeavoring to present to the
Tribunal. The delinition of property does concede formally to the
individual the right to abuse it, :. riglit to destroy it. It C()n<'ede8 the
I)ower — I will not say it concedes the right; for it does not concede the
right. On the contrary, legislation in a thousand forms is aimed
against unnecessary destruction of property; and wherever there is
any considerable probability that individuals will abuse the light of
property, the law will step in to reiu-ess it.
The law of nature, the philosoi)hy upon which all law is founded,
must necessarily preserve property, and apply, wherever it may be
ill
1
■■^•1*
4(.
li-
m
■»
172
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
U l!
needed, such remedies as may be suitable to preveut any destruction
of it. Let me call to mind in liow many ways our municipal law exerts
its etlorts in that direction. We impose public taxes for the purpose of
su.taiuing bodies of men i;0 make scientific inrpiiry by whicli af;Ti(;ulture
maybe eiicourajicd, ami the productiou of the earth Increased; and
this shows the etfoit that society makes not only to i)revent the destruc-
tion of i)roperty, but to increase it. We re-stock the li vers; we attempt
even to re-stock the seas, and expend a great deal of money in tliose
attempts. These are ettbrts going further than the effort to ]>res('rve
property. They are etfo'ts to increase it. They are eHorts, indeed, to
])reserve the sources of blessings whicli are in tiie 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 druidiaid or a spendthiift,
havii-f^ .1 large iirojjerty. Does society permit that man t() deal with
his in'oi)erty as he likes? No. He is likely to abuse it; he is likely to
destroy it. He will not mana,fre it well. It is taken out of his control
and put into the hands of a trustee. Is "' to beiielit him ))articulaily?
Is it out of tenderness to the feelings or tne convenience of a wortldcss
wretch like him! No; it is for the ])reservation of society. It is fur
the ])reservation of that ]uoperty for the use of society generally. This
individual mi;>ht himself have no heirs at all, aiul the state might be
the next p"' son who would come in ami 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 n\eets with disaster. She has been disnuisted, and is lying
helpless u])on the bosom of the sea. Another vessel comes there in
perlect condition, well rigged, and able to take her into some port in
safety. Tiiis vessel newly arriving otters the captain on board of this
stricken vessel to take him into port for a reasonable salvage. He
says, "No, 1 will tind my own way in there. I think I can get there".
"Well", the salvor says, "I don't think you can get there; you haven't
the means". "No matter whether I have or not", he answers; "1 am
the owner of this vessel" — aiul it may be that he is the owner of it —
" I am not onlj' the owner Ji 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 <mly loser." Now, suppose it to be clear that
that man has not the ability to take his vessel into port, has tlu^ salvor,
the person who comes there any right? Yes; he can take that vessel
out of the i)ossession of the nnister.
Lord Hanmkn. 1 should like to have an authority for that.
]\Ir. Cai{tki{. I do not know that I can give any; but 1 think those
are the i)rin('i])les of the law of a<lmiralty.
Lord Hannkn. I think I should like to see an authority for it — that
a ':.'in can insist upon saving a vessel against the wishes of the owiu'r.
Air, Caki'kr. I tliiidv it is true. 1 will make some effort to discover
an authority of that kind. If I am unable todiscover it, I will withdraw,
certainly, any assertion to the effect that it is the law, but not the asser-
tion that it ought to be the law, until I can find some autluaity against
it. It is not the first time that 1 have heard the proposition stated, how-
ever, I have heard it stated l'yi)rofessional l)rethren.
What 1 have said goes to siiow that the right of property, whether of
nations or of individuals, is not absolute under the law of nature, but
is subject ti) limitations — limitations of a twofold character; one that it
is hcki subject to a trust for the benefit of mankind; another that the
Mseonly is given, aud not the absolute t'ling itself. If the absolute thing
H
i
-en't
am
it—
the
ours.
that
Ivor,
vessel
those
wuer.
over
haw,
asser-
raiiist
how-
lier of
but
lr.it it
It the
thing
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
173
.1
itself were given, so that the individual had a riglit to destroy it, then
it would not be proper for hiunau society to take notice of any attempts
to destroy property; but there is, as 1 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
animi'Ltithejurisprudenceof any nation, namely, to prevent the destruc-
tion of i)roi)erty. The preservation of property, and the increase of tlie
aaiount 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 ])urpose of securing that end; and indeed the
extent to v hich the institution of property is i)ermitted to be carried is
only an illustration of tlie iiiiportan(!e which society attaches, not only
to the presei'vation of propfftv, b<' to the increase of the amount of it.
Society places no limit to the ext-i.r to which projierty may be held.
Attention is often called to the enormous fortunes which individuals
acquire, e8i)ecially in recent times; and the question is sometimes asked,
why should individuals be permitted toeiigross])r()iierty by the hundreds
of millions! When we look into the real natuie of it, we see that the
permission of carrying the institution of property to that extent, of
allowing individual ]>ossessions to that extent, is only a part of this
generally wise and beneficent systeuj which encourages the jircservatiou
of property. Those who are most successful in the acquisition of i)rop-
erty, and who ac(piire it to such an enormous extent are the very meu
who ai e able to control it, to invest it, and to manage it in the way most
Uvseful ttt society. It is because they have those (jualities that they are
able to engross it to so large an extent. They really own, in any just
sense of the word, oidy what they consume. The rest is all held for the
beneht of the ])ublic. They are the custodians of it. They invest it;
they see that it is put into this employment, that em])loymeiit, another
employment. Labor isemployed by it, and employed in the best manner;
and it is thus made the most productive. These men who ae(|uiie these
hundreds of millions are really groaning under a servitude to the rest
of society; for that is practically their condition. And vsociety really
endures it beiiUi-e it is best that it should be so.
I base caiUd ti ^ attention of the Tribunal to the various forms and
methods in Avhich society manifests and entbrces its policy oi' i)reserving
}»ropertj ,uid increasing the amountof i)roperty and umking the natural
bounties of the earth more productive. I have pointed out several modes
in which that po'iey is illustrated. 1 could point out many more. I have
this fuither suggestion to make ujjon that ])oint: that it is one of the
duties particniaily incum bent n])on civilized Society to take these met In ids
and meansofpreserving property a ml ofpreservingthesources from which
prope -ty proceeds, because civilization makes a \ery dangerous attack
upon the fruits of the earth. The moment the numbers of nninl-ind are
increased, the attaitk which is made upon the fruits of the eaith which
can support and maintain mankind, are pro])ortionately incieased ; and
there is danger, therefore, of destroying them. There is danger of
desti'oying the races of anin)als, and therelore with the in<;reu.e(l attack
which civilization brings there comes aconespoinlingduty re-ting upon
civilization to i>revent those attacks I'rom becoming ellective. 1 might,
am, shall by and by, bring this argument to bear ujuni the case of these
seals. When these seals were discovered a hundred yearsago, they were
a blessing tributary only to barbaric man. A fewhumlreds were all that
veie taken. And tliosi^ few hun<' eds — if may have been a few thou-
sands—sulliced tosupply all the w ants oftheinliabitantsalong the shot es
where they were found- That was the only attack which the barbaric
M
' ■'■■ 'I
II
WP
Pi:
174
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
world made upon this bounty of Providence; but civilization and com-
merce come in .low, and what is the result? The whole woild is attack-
inji tiiem. Eveiybody tliat wants a sealskin, in Europe, or Asia, or
South America, or (!iiina is attackinji" these lew remaiiiinj;' herds; and
of course there is notliinj^' tliat can withstand that attack unless civiliza-
tion brinj>s along with it some remedy by which it can be resisted and
its consequences averted.
Tiie President. Did those Indians take the seal at sea as well as on
the islands?
Sir CiiAHLKs ItUSSKLL. At sea.
Mr. Carter. They did. Tliat was their only mode, indeed, of taking
them. There were no inhabitants orij>inally on the Tiibildf Islands.
The President. It was the original mode of catching the seal, to
take him at sea?
Mr. Carter. It was the oidy ntode by which they were originally
cauglit. The weapon Viitii which tliey were thus taken was the sjjear.
Senator iMoRGAN. ]\lr. (barter, I understand that the statutes of the
United States chiim the property in seals as against their own citizens,
as an absolute right?
Mr, Carter. Yes.
Senator MouCrAN. They protect them by criminal, penal enactment?
Sir Charles Kussell. Tlu-re is no statute that says anything about
projjcrty in seals.
iMr. Carter. There is a statute — it does not say anything about it,
but it has the elfect. It is tlie elt'ect of laws we are speaking nbdut.
Senator McRCiAN. It forbids citizens taking seals at all, or Jiolding
any property in them.
Mr. Carter. Yes.
Senator I^Iokgan. Suppose this Tribunal should hold that the United
States Goveriinient 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. Cauter. Ko; I hardly think it would be. As a matter of
moral duty, 1 think the United States, notwithstanding such a decision
of this Tribunal, would be well Justiiied 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. Supjiose the United States should conclude to
re])eal her laws on that subject: what would become of the seals?
Mr. Carter. The seals will <ii8api)ear, whether slu' repeals her laws
or not, if pelagic sealing is allowed to continue. It is not woith while
to discuss — at least, I so think — as to what the fate of these seals will
be it pelagic sealing is i)ermitted. Of course, following up the sugges-
tion of the. learned Arbitrator, we can easily see this; that the moment
when fiom any cause it ceases to be renurnerati\e to the United States
and the lessees of tlu' Pribilof Islands to maintain a watch over those
islands, they will leave the islands and give uj) the watcih, and that
moment, of course, the seals are gone; because they then will be sub-
ject to the de]uedations of every marauder who chooses to go there.
They will go then as they have gone on the islands of the Southern
Pacilic. The moment the guard is taken from the Pribilol' Islands, the
fate of the seals is fixed.
I must finish this line of my argnnu^nt by sinnniarizing the eonclu-
eions which J think J have established. They are:
I
I
I
SlOll
lose
bar-
'ouUl
to
aws
iiilc
will
II out
atos
IOS(>
that
sub-
icre.
icni
tlio
ii;hi-
ORAL ARGUMI:NT op JAMES C. CARTER, ESQ.
175
First. Tlic institution of piopeity springs from and rests upon two
prime necessities of the liuinan race:
1. Tiie establishment of jieace and order, whieli is necessary to the
existeiKH! of any form of society.
2. 'file i)reservati<)n and increase of the useful products of the earth,
in order to furnish an adeipuite supply for the constantly increasing
demands of civilized society.
Second. 'J liese reasons, uj)ou which the institution of property is
foniided, reijuire that every me/id thing, the supjdy 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 n.-itun^, is
conferred ujion particular uatious 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 Ijenelit of mankind. The human race is entitled to
partici[)ate in the ciijot/ment.
2. As a corollaiy or part of the last foregoing proposition, the thin js
themselves are not given; but only the increuac or usiifnu-t theieof.
] think 1 will devote the few remaining minutes before the hour of
adjournment arrives to the perusal of some authorities bearing upou
these conclusions which are not in my written argumeid, but which I
have had printed, and a copy of which 1 will hereafto deliver to my
friends on the other side.
The I'liKsiDKNT. Are those the citatious mentioned in our tirst sit-
ting, which were left out by the printer:;
Mr. (Jak'I'er. No, Mi-. President, they are not those, but they are the
best substitute tiiat 1 have been able to make for them. Quite a num-
ber of citations have been sent to me from 2s' ew York: but they do not
include that s])ecial list, although some oi'tliem may belong to it.
The President. You will never be able to make up that list again?
Mr. Carter. Xo; 1 cannot re])roduee that, but it is the best siilisti-
tute 1 can furnish. It is eonqiosed, let me say, in part of quite a num-
ber of authorities which 1 had thoughtless signiticanr, and which I had
rejecteii in making up that list. J have been compelled to use them in
the ])reiiaration of this. I will read fiom Sclumler, an American writer
on the law of personal projierty, and from his introductory chapter,
part I :
Prior to all [lositivo iimtilulions oxistH tlm tiiitli tliat to niiuikiiid bt'loiiii;tlu!tIiiii£[8
of this t'iirtli its !» '^ift t'roiii ahovi-. 'I'lif iii;h1 to ar(|iiiie, iiiul to excni.sc; (loiiiiiiiou
over tlu'st" lliiiiy,H "to subline," tlio earth, an i'v is said — is iiiiivornally felt to Ik* a
uatiiral riijlit ; wiiilc the oorri'spotnlinj^ desire of aeqiiisitiou ix one of the strongest
iu the hniiian heart;— tliat whieii j)roiiij)t8 the luilettttrcii. and undisciplined sa\a^e to
phiudcr and kill for 1h< alie of jiieedv NjKdlH, hut ainou;; a well ordered and leliniid
jieople may he found thr niain^^iniiiji' of ei vilizatioii. Nor is the uift of external thinf;;s
to the human race absolute and \\ if liout liiuilatioM, for it is conceded to be sometliiiif;
designed tor henelicial use and not for wanton injury; to be enjoyiMl and not to be
abused. The interior animals may niinist«'r to onr wants; (dsc tht<y should not bo
killed and uiainied by us for mere jiastiine, irr when the duty of sell"-|irotection (^au
ali'ord no reasonable exi ust;. The soil should 1'^ cultivated and improved as far as
lK)ssible — not laviMhcd. laid waste, and loft desolate, nave where some terrible lessou
of good to mankind may furnish ,i sutticicnt means of' iustilicalion. Nature teaches
th<f lesson doubly enforced by revtdation, that the riulit of the human race to own
and I'xercise dominion ovci- the thini^s of this earth in ^luccessive generations carries
with it a forrcspondinj; nuiial (ddigation to use, enJo\ , and transudt in due emirse
for thi» benctit of the whole huniaii rac.e not for ourselves only or for thopc who pre-
ced<\d us, but for all who are vet t(( come besi<les, thut the grand jMirpose of the
(Jroator and (iiver may be fully aciomjdisliod.
:t*.
11
i
"'if I
.m i
ill
^^
176
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
And from Caul Held Herron, an Englisli witer, in liis "Introduction
to the History ot Murisi)rudence," Bk. 1. cli. iV, i>. 71:
Property is the rijjlit of using. The right of property is founded upon its siib-
servit'iicy to the subHi.stence and well-being of man fund. The institution of prop-
erty is necessary for social order. The exclusive appvojiriatioii of things is essential
for the tnll enjoyment of them. . . It is the principal foundation of social im])rove-
nient; 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. Tlie right of excluding others; 3. The right of dis-
position; 4. The right of transmission.
Tlie Arbitrators will perceive that these authorities fully support
what 1 have been endeavoring to lay down.
I now read from De Bayneval, a French writer, in his work "On the
Law of Nature and Nations," Section 2, page 5)6:
Property did not exist in the primitive state of the world, and it is no more
inherent in human nature than heredity. Originally men did not jio.ssess more than
the animals ]»osses8 to-day. The earth was common to all and belonged to no one.
When agriculture lecanie necessary for the sustenance of man, each was partial
naturally to the earth which he had cleared by tlie sweat of his brow, and which
olfereil him the fruit and the recompense of his labor; whence the first idea of pres-
ervation and ])ro[ierty; whence also, the quarrels which the exclusive right nmst
have caused ujion the ground that it was invoked for the first time. These quarrels
must hav(! finally led to couipromises; these compromises iutroduced the right to
enjoy exclusiv(dy the earth which each had cleared and cultivated, and tiiis Ih the
most reasonable origin of propi^rty. Ithiisthen been introduced for the mainienance
of iieaco among men. It has then been the principle of their union and social order.
From .lohn Penford Thomas, an English writer, in his "Treatise on
Universal Juri.sprudeuce," eh. II, p. 25:
All filings belonged originally to mankind in common. The benign Giver of all
gifts (lid not distriliute them to some to the exelusicm of the rest of the species. In
the state of a conniiunity of things the first bodily "ccupancy and use of so much
only as linnian wants from time to time re(]uired supplied the place of pro])erty. In
the ])rimitive state evtry man had a right not to be hindered from using whatever
laud or iJrodiice he had appropriated to himself and he inmiediately wanted for
rational use, and the Ijestowment of bodily labour on a thing was the only mode
of a(;(iuiriiig a jiositive title to it. Agriculture could not flourish, nor its fruits be
im])rovcd or ripened into maturity. Ingenuity was not sufliciently rewarded, dis-
putes cmitinually arose; the ingenuity and industry of man were checked. Pre-
occup.ition by slow degrees comiaunicated with the consent of man either express
or inii)lied a right of aiq)r<ipriation; and the iutroiiuction of money has greatly
exten(le<l it. The increaset. wants, im])roved agriculture, and valuable elegancies
of incipient civilization gave birth to the distinctions of projierty.
[The Tribunal thereupon adjourned until Thursday, April 20, 1893,
at 11.30 o'clock a. m.J
TWELFTH DAY, APRIL 20™, 1893.
i
[The Tribunal convened pursuant to adjournment.]
The President. Mr. Carter, will you proceed?
Mr. Carter. Mr. President, my argument yesterday had a twofold
character. It was desijjned, in the tirst pUu^e, to show that by the
doctrines of municipal law everywhere accepted, the fur-seals were th«i
l)roperty of the United States. In the next jdace, my pnrjwse was, if
there were any doubts concerning that conclusion arising out of diiler-
ences between the natnre and habits of the seals and those of otlier
animals in revspect to whicb the question of property had been decided
by the municipal law, to more particularly exjtiain that the proper way
to remove them was to look to the foundation upon which tiie institu-
tion of projierty itself stood, and that if we should lind that there
were the same reasons for awarding to the United States projterty in
the fur-seals as there were for awarding property in anytliiiig, 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 propeity in order to show that property was not founded ujmn 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 nation?, 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; tiiat 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 tiling than
its necessities required it held the supeiabundance subjec t to a trust
for the benefit of mankind. Second, that the use only of things is
given, not the stock, or i)rincipal thinijf; thiit that was to be preserved
for the benefit of future gcneratiouM. 1 next ciulcavored to show that
these deducth)ns from the law of nature wcri' conlirnjed by the actual
practice and usage of manKind; that, althougii under n nnicipal law
as between individuals one could not call another to account tor an
abuse of the right of projx'tty or for an attempt to dcslr(ty it. and there
were not generally laws for the correition of abuses ot the law of
propeity by individuals, the motive ol self interest being sufiicienl for
the i>urposc8 of protection, yet there were, or might i>e, exceptional
cases even in municii)al polii-y, where there were dangers that indi-
viduals would abuse the right of property, in which tlie state would
])revent that abuse; that the practice of nations still (urtlier illustraicd
the truth that the title to property was not absolute, and that wher-
ever there was a nation in possev^siou of a great bounty of Providence,
1
i; -if
U S, I'T X.II-
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177
178
OKAL ARGUMENT OF JAMES C. CAKTER, ESQ.
any Hource of lia])piiie88 and advantage to mankind, which it tailed to
use for the beiiclit of mankind, other nations iiiiglit assert a rij^ht to
interfere and take l>oss(!t^^^ion of it and turn it to the jjeneral benefit;
tliat the whole policy of the colonization by civilized states of the
ninvly discovered regions of the globe was a constant illustration of
tliat 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 conunitted in the course of carrying out those
poli(!ies of colonization. The excesses cannot be defended, but the
l)olicy itself is entirely defensible.
These views, as it seems to me, respecting the origin and foundation
of ])ro])erty an<l the reasons upon which it stands furnish a true and
sullitient answer, and the only sufficient answer, to the attacks of
socialism ui)on the institution of property. They regard the institu-
tion of property as proceeding from gieat social necessities, and as
founded u])on the nature of man himself, and consequently they assure
the everlasting perpetuity of the insHtution. So long as the nature of
man remains unchanged the institution of i)rivate i)roperty, the most
beneficent of all the fruits of civilization, will remain also.
Jn the course of my observations on the value which municipal law
assigns to tlie preservation of pioperty itself, I had occasion to recur
to an instance which 1 ■ iDjXJsed the law of Admiralty furnished,
namely, in cases of salvage. 1 stated, what 1 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 tiike i)ossession 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 befurnishe<l with
an authority ujion that point. It was rather disturbing to me, I con-
fess, to have a doubt suggested from such a source.
Lord llANNEN, I thought you were stating it too broadly; that
was all.
Mr. Carter. Ves; 1 was afraid I had stated it too broadly. I have
110 access here to books of rei»orts either American or English, to ascer-
tain fully what has ])assed into Judgment; but 1 did recur to one or two
text writers, and 1 have something upon that subject which maybe
deemed pertinent. Prof. I'arsons in his work upon maritime law, which
is a book of recognized autli«>iity, he having been for many years a
leading ])rofessor in the principal law school of the United States (that
of ll:u\;iid) says this, (page 'J(»4, Vol. 11, ''Parsons on Shipping and
Admiralty"):
It liiis bteii iiiiuie a (|U«'sitt>u whether poi'smiH forcibly taking possuHHion of a vos-
sel ajiiiiiist the ■*illiii i lie Biusl:»'r duu 'laiiii as salvorb. litit we think itnniat be
obvious .lul I irr:aiii tJial. on th<' oiw hand, tbe iniistur's reliiclance oi resistance to
thoHavnijT of tlcf ijrojifrty under liif> char.u't' sh(iui<l nut bar tlie claims of saivurs. but
nithiT eiihatiic them, if their H(«rvi<!eH were necessary, or in all respects meritorious
and useliil. Hut nn theotlicr hand hi.t opiMitjition would ho a circumstance of great
wciij;ht ill deterniiiiiii;;' wliether tlieir sarvices were necessary or meritorious.
Sir Charles ltTTat4Eix. I think that is not the case where the master
is the owner.
Mr. (JAiiiEU. 1 tlttak it is. Do you mean to say that Prof. Parsons
does iiot so intend 'i
Sir ( 'iiAULES KrsHBLL. ^o- he is dealing with the case of the repre-
sent;itive of tk't* t»wner — the master, not the owner himsell".
Mr. (.'AirrEJv. What the case is, with which he is dealing I am unable
t»j say, u(»t iia\ii)g access to any Keports; but the principle which he
i
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
179
be
to
but
oils
re-
» ^^
lays down ia, that the reluctance of the person in charj^e of tlie prop-
erty, his opi)osition to the takiiij; of possession by the salvor, does not
detract from the claim of the salvor, but rather euhances it; and if that
be true in riferen(!e to the master of the ship, 1 rather thiiiic 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," be can commit
that rijjht to an a{?ent.
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
])r()perty rests to the parti(;ular question which is before us. The gen-
eral princijdes I have gone through at some length. J make no ajxtlogy
for going into them at tiiat length ; for the question which this Tribunal
is to try is a question of property as between nations. It is the lirst
lime, so far as I am aware, that any such questicm has been submitted
to an international tribunal, or indeed to any tribunal at all; and tlie
decision of it, therefore, requires a tliorougli investigation into the
grounds and reasons upon which the institution of property rests.
in order t<* 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
lacts in relation to the fur-seals themselves; we should have a clear
knowledge of the facts resi)ecting 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
eu)ploy to avert those dangers.
The Arbitrators will bear in mind one of the general conclusions
which 1 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 xitUiiy and denire to man ; second, that the sup-
ply teas limited, that there was not enough for all; and third, that it
was capable ofexdunive appropriation.
'Now, tirst as to the utility of these animals. That is obvious and
conceded. Every part of them is useful to man, their skius, their flesh
and the oil which they afford; but their skins are tlie most useful part,
as they lurnish a garment of great beauty and utility and which is
greatly desired all over the globe. Tlie 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 al.so evidences that
fact so completely that I need not dwell ui)on it any further.
Next, as to their nature and habits. W here are we t(» go for our sources
of inforiiiation upon that topic. What is the evidence befoie this Tribu-
nal to wiiiili it (!an resort for the purpose of infoiming itself respe(!ting
those facts? There aie several classes of evidence. In the lirst place,
thee is a large body of common knowledge in res]»ect to animals, their
iiati re and habits, which every intelligent person is sni)i)()scd to pos-
sess, and all this may i)i'()p( rly be apiiealcd to. In the next place, there
are the works of naturalists of recognized authority which may also be
ap))ealed to, works, written in whatever language, by men who have
given attention to those studies to such an extent as to establish them-
•-(ilves as authorities Ujion the topics of which they treat. In the next
]»lace there are the reports of the Commissioners appointed under I he
terms of the Treaty, which as will be perceived, from examining the
treaty, are made evidence; and althougli the (Jommissioners could be
personally cogni/antof only asmalli)art of the facts which it was neces-
sary for them to learn, still their reports, and their oi)inion8 are made
evidence, not only m relation to facts which fell under their observa-
^1!
III
,f!
m
m
180
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
tion, but facts of which they fjained their knowledfjeby sucli methoda
as iseciiied to thotn suitable luid best, liotli the joint and several reports
are alike made evidence. I do not say they are made evidence of e(|ual
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 tcfitimony,
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 tliis body. First let me speak in
reference to the depositi<Mis of the witnesses. These will be found, to
a certain extent concurring, and to a cei tain extent, conflicting. They
are the depositions of witnesses whose characters, stations and appar-
ent trustworthiness are very difl'erent. We have some of great intel-
lijience, and supi)osed im)»artiality, who have had opportunities of
ol>serving 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 phice there are depositions of other witnesses who have visited
the islands for other reasons, but have had means of observation, iu)t
so extensive as those to whom I have alluded, but still good means of
observation; and their evidence is also of considerable weight. Then
we have the evidence of a great number of what 1 may call connnon
witnesses — the Indians, the Aleuts, the natives on the islands; the
Indians along the shore; the Indians and whites engaged in pelagic
sealing. Tiiere are depositions in multitude from persons of that char-
acter and (lescrii)tion. Their opi)ortunities8 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 sjieaking the truth; and
therefore the testimony of such witnesses must be taken with a consid-
erable— a very great — degree of caution.
In the British Counter Case will be found various aflBdavits tending
to show that certain jjcrsons whose aOidavits were given in the Case
of the United States were not correctly reported by the persons who
took their aflidavits; 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 tliat that witness is not to be
credited. The nuniber of the instances, however, in which the testi-
mony of witnesses on the part of the United States has been success-
fully imi)eached on those grounds is comparatively small. The great
bulk of the testimony remains unimpeached.
The value of testimony of this character dej)ends 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
lilt
it
ler
be
5ti-
:S8-
eat
on
lid
>U8
it
I
I
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
rable circumstance
181
passes that ordeal, tlint is one very cons
I'avor, and it may be the more properly relied npon if it has snccess-
fully passed such an ordeal as that. All the testimony of this character,
or snbstantii'lly all, upon which tne (iovemment of the United States
relies has been freely and fully submitted to (Ireat IJritain and itsaj-ents
for the i)urposes of criticism and im])eachment. The testimony on the
])art of (Jreat Britain of the same character, however, has never been
submitted to us. 1 have already remarked in s]>eaking upon one of the
motions made at the preliminary hearings before the Tribunal of the
inequality to which the United States was subjecte<l in that ])articular.
I have remarked upon the plai'i and obvious iidvaiitages which (Ireat
liritaiu enjoyed iu the way of refuting, criticising aiul imi)eaciiing 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.
80 much for tlie testimony of these witnesses. I am not going to
criticise them iu detail because 1 have not the time. Tiiat work will
be done by another. But I have something to say in refereiuie to the
comparative merits of these joint and several reports of Commissidiiers.
Senator Morgan. Mr. Ciirter, is tlieie any motion to excriiide tiiat
part of the testimony in the British Counter Case — on the giound that
it ought to have gone into the Case?
Mr. Carter. No; we have made none. No motion of that kind is
made. 1 have pointed out the diiliculties which would attend the mak-
ing of such a motion; the embairassing results which success iijioii
such a motion would lead to; and the linal conclusion of the counsel
for the United States that tliey would, on tlie whole, accept that tes-
tinu)ny, and deal with it — uiili its weight, its credibility iind its trust-
worthiness— by luinging to bear upon it the considerations which 1
have now mentioned. Jn commenting upon its weight and ti ustworth-
iness before this Tribunal, we shall rely ui)on the cin-nmstance that
our testimony of this sort was submitted to our opponents and they
carefully reserved theirs from our attack.
As to these I{ei)ovts: What was the purpose for which these Joint
Commissioners weie appointed? ] have spoken to that point aln-ady
in what I said u|)on the argument of the motion to which I have
referred. The idea was originally suggested in the scheme of settle-
ment which Sir Julian i'aniicefote proposed to Mr. I>laine.
Senator xMorgan. You mean the draft convention?
Mr. Carter. That draft convention, in liS!K>. The suggestion came
from Sir .lulian Pauncefote that the two (Jovernnients were not agii-ed
as to what the facts were in reierence to seal life, and the nu)des by
which the seals were pursued ui)oii the sea and upon the islands. His
notion was that if they were agreed ui)on the facts it would ])robal)ly
be easy to settle the controversy by a convention, and that the proper
course was to make an attem])t to arrive at an agreement upon the
tacts by appointing men of intelligence, men of science — in one word
experts — whose testimony could be trusted; 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 aiul the methods by which
seals were i)ursued, and reijort the facts and report what in their opin-
ion would be ])roi)ei' regulations designed to ]>:('serve the seals from
extermination. "^I'lie idea, therefore, assumed that these joint commis-
sioneis were })ersons who were entirely to be trusted — trusted as to
their intelligence, as to their impartiality, as to their scientific attain-
Hi
n
■ ■ 1 i
:':' it
4
H
i'l
182
ORAL ARGUMENT OP JAMES C. CAUTEh', ESQ,
meiits, and as to all qualities which serve to recommend the opinions of
men. They were to be a commission of exports.
My learned friend, Sir Charles, made tlic observation while he was
spoakiiijj ui)()n the motion referred to tliat it did not api)ear to him
that thviv was any ]»articular sanctity connected with the reports of
these Joint Commissioners. 1 bej; leave to ditl'er with him upon that
point. Tiiere was a great deal of .sanctiti/ — usin*;' tliat word in the
sense of imi)ortance — attached to them. It was snpposed tliat tliesc
Joint Conunissioners would tiirnisli these two Governments with the
absolute truth ui)on the questions which tliey were appointed to exam-
ine aiul that they would so furnish them witli the truth that there
would be no dilli(!ulty in reaching an adjustment of the controversy by
the establishment of regulations designed to ])reserve the seals.
That was the view upon which these Joint Commissioners were
appointed; and we have their rej)orta here. These genthaneii were
all of them men of the highest character. They were all of higii
attainments and perfectly competent to make a thorough investigation
of the (juestions submitted to them and to ascertain the truth and
make that truth a])parent in their reports. The Commissioners on tlie
l)art of the United States ado])te(l that view of their functions. Tliey
conceived that they had nothing to do with diflerenees between the
two Goveinments; that the question whether the United States had a
superior claim or right to that of citizens of other nations to the seals
was something with which they had no concern; that the question
whether the citizens of other nations had the right to jjursue the seals
on the high seas was a question with which they had no concern; that
the only point which they were to investigate Avas what luethods must
be pursued in order that the race of fur seals might be i)reserved from
extinction. In other words, they looked upon the (juestion, not from
the point of view that li(ne are different nations both of tlieni capable
of reaching the seals, the United States capable of reaching them on
land, and otlier 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 h)oked upon it as if the whtde world were one
country, and as if all mai.kind 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 di])lomatic agencies which had power over such
questions.
This is what the Commissioners of the United States say as to what
they con(!eive to be their functions, (page 315 Case of the United
States) :
Desiring to nunovo every ohstaclo in tlie way of the immedifite consirloration of
tliis subject, the qucsti'tu of the I'orniality of the Conference was waived ou our
side and the formal meetings of the CominiHsiouers in Joint Conference began on the
aiternoon of Felirnary 11, at the Department of State.
Mr. Joseph Stanley-Urown was selected as the secretary of the .loiut Coniniission
on the part of the United States, and Mr. Ashley Fronde ou the pait of ( ireat Britain.
In dett;rniininjj; the nature of the Conference it was a<>ieed that in order to allow of
tiie freest possihlo discussion and presentation of views, no fdrnial record of the ])r(>-
<'('eding8 should be kept and that none but the four members of the Commission
should he ])reHent duriiiir its deliberations. In further attempt to remove all restric-
tions u])on the fullest, expression of opinions durinif the Cnntcronce, it vas agreed
that in our several reports no reference to ])ersons, as related to views or ojtinions
expressed by members of the Commissiou durin;; tlie Conference, should lie made.
Meetiufis of the Johit Commission were held almost daily fiom the 11th of Feb-
ruary until tlie Ith of Marih, on which day the joMit report was signed and the
Conference adionrned Kiui die.
ORAT- AimUMENT OF .lAMES ('. CARIEW. F.Si/
183
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liitft'icnccH of opiniiin, not only as to i onclnsionH, but iiIho iih to fiict.i. it seems
ju'oiK.T iieie to lelei' lirielly to tiie attituilc of llio ('oiiiniiHsionoiH on the jifiit of the
I'liiied States or to the Rtau<l])oiut from which they oudeiivoroii to eonsich-r the
qu(?Htions involved.
Tiie iustrnetions under which we acted lire contnined in Article I,\ of tlie Arbi-
tration (,'onveiii ion, and. as far as rehite.s to the nature ot' the iu'iuiry, are as tnllowH :
" I'laeli ({overnnicnt sliall appoint two tJoiiuuissiiuiers to investiijate cunjciint ly
witli tlie ('oniniissioners of the other (ioverninent all tlie facts havin;j relation tn
Beai life in Herinjf Sea, and tlie ineaHures necessary for its proper i)roteetion and
jireseivation."
'I'liis sentence appears to be simple in its character and entirely (ilear as to its
nieanini;. 'I'lie iiuMsures to be recommended were such as in our judj^ment were
necessary ami suflieieut to secure the proper protection and preservation of seal life.
With ijuestious of international rij^hts, treaty provisions, commereia! interests, or
political relations we luid notliinj^ to do. It was our ojiinion that the consideial ion
of the .(oint Commission oiiifht to have been restricted to tliis phase ot' the (|nes| ion,
bo clearly put forth in tlie afjreement under whi<'h the Commission was or;;aiii/e<l.
and so evidently the ori^final intent of both Governments wheti the invostif^ation
was in contem]ilation.
Had the preservation iin<l perpetuation of seal life alone been (Mitisidered. as was
nrn(Ml by us, tlu!re is little doultt that th(< joint report would have ln'cii of a niucli
more satisfactory nature, and that it would have included much nmre tli.in a mere
reiteration of the now universally admitted fact that the number of si'als on and
fre(iuentin<; the Pribilof Islands is now less than in former years, and that the hand
of man is responsible fortius diminution.
'Mint our own view of tlie nature of the task before us was not shared by our col-
leamies re])resentinfi the other side was soon manifest, aiwl it became clear tliar no
sort of an aj^reement sulliciently comprehensive to be worthy of c(uisideration and
at the same time detinit*' enough to allow its consef|ueiices to be thoiij;ht out. could
he reached by the .Joint Commission unless we were wiiliiij;; to siirreniler absoliitelv
our o]>inions as to the elfect of pehifjic sealiufj on the life of the seal herd, which
opinions were foinided ti])on a careful and imi)artial study of the whole question,
involvinj;' the results of our own observations and those of many others.
I'nder such circumstances the only course open to tis was to decline to acrede to
any projjosition which faileil to otl'er a reasonable chance for the preservation ami
I)rotection of seal life, or which, although apparently locdiinjj in the rij;ht dive; tiiui,
was, by reason of the vagueness and amVdguity of its terms, incapable of definite
interpretation and generally uncertain as to meaning. In oliedience to the rennire-
meuts of the Arbitration Convention th.-it "the four Commissioners sh.ill, so far as
they may be able to agree, make a .joint report to each of the two (iovornnients."
the final outi)ut of the Joint Commission assumed the form of the joint rei)ort snl)-
milted on March 4, it being impossible in the end for the ComiiiissiiuierM to arree
u])on more than a single general ])roposition relating to the decadence of seal life, on
the Pribilof Islands. It therefore becomes necessjiry, in accord.nice with the fiiitber
provision of said Convention, for us to submit in this, our se])arate reiiort, a toleiu-
bly full discussion of the whole question, as we vi(!w it from the st!ind|>oint refci red
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 Britivsli Coimniasioners took an eiitirfly difVcretit viow of tlipif
fuiictioiivS. Their view was that this hcid of soals hiiviiia it:-! home on
the Pribik)f Islands, certain superior iidvantiis^s and facilities were
enjoyed by the Government of the Ignited States for t:ilviii<^ them on
the Ishittds; that, on the other liand, the seiils weic dnriiif; a liirj^e
part of the year in the lii^h seas, where tliey could he luirsued by the
citizens of other nations; that under tliese circumstatK-es the citizens
of other nations had the samerigfht to ])ursue them on tiie sea that the
United States liad to tnke them on the land, and that their function
iind office was to contrive such regulations consistent with that sup
position of res])ective national ri{>'hts as would best tend to ])re.serve
the seals. That view is manifest all over their report; but I will read
a section or two wliich serves to brinji' it out very clearly; bejiinning'
with Section 123 found on page 20:
123. Hesides the general right of all to hunt and take the fur-seal on the high soas,
there are, however, some special interests in such hunting, of a preseri])tive kind,
arisin;^ from use and immemorial custom, such as those of the "natives" of the
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184
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
1 4
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■111
PriUylofr Islands, and of the inhubitants of the Aleutian Islands, of Sonth-nnstorn
AlaHlica, of the coast of Hritish L'oliunbiu, and of the State of WuHliin^rton. There
are also rights dependent on local position, sncli as those of the Governnieuls possess-
ing the hr<M-din|r islands and those coutrollinK the territorial waters in or adjacent
to which the seals spend the winter half of the year. 8nch rigiits do not, however,
de]icnd on position only, but also on tiie fact that the seals neccssaril.y derive their
sustentince from the fish which freqnent these waters, which, if not thus consumed
by the seals, would be available for cajtture by the people of the adjacent connts.
The ri^lits of this kind which How from the possession of the breeding islands iire
well known and generally acknowledged, but those of a similar nature resulting
from the situation of the winter himie of the seal ploug the coast of British Colum-
bia have not till lately been fully ajtpreciated.
124. Referring more particularly to the Pribyloff Islands, it must perhaps lie
assumed that no arrangement would be entertained which would throw the cost oi
tlu; setting apart of these ishinds as breeding grounds on the I'nited States tiovern-
meut, together with that of the support of some 3()0 natives.
It may be noted, however, that some such arrangement would offer p(>rliap8 the
best and simplest solution of the present conilict of interests, for the citi/cns of the
United States wonid still possess e<|ual rights with all others to take seals at sea,
and in consetinence 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 ^r 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 bec<inie8 necessary to
face the far more diflicult problem of iuternaticmal agreement to some code of regu-
lations involving an accompanying cnrtailment of rights, iu other words, any such
arrangement must be viewed either as a concession of certain tights on the lii<;li
seas, or a concession of peculiar rights devolving from territorial jiossession of the
breeding islands of the seal, miule in each case for the pnr])ose of inducing e()uiva-
lent concessions <ni the other side iu the common interest.
126. For practi<-al purposes, the main consideration is that any scheme of meas-
ures of protection shall absolutely control, so far ns may be necessnrv, any and every
methotl of taking seals; and from industrial considerations, and inonler properly to
dcterudne on reciprocal concessions, it is necessary to as^unu) some ruling priiici|ile
in accordance with which these shall begoverned, and such may be found, in a miigh
way, in postulating a parity of interests an between pelagic sealing and sealing im
the bree<ling islands. This wouhl I'^volve the idea that any reyfulation of the fishery,
as a whole, should be so framed as to afford as nearly as i)ossible an equal share in
benefit or prt)cee<ls to these two interests.
There we see the views upon which the Commissioners on the part of
Great Britain proceeded. They conceived that, here was a conflict
between tlierijrlits of nations, which must betaken into account in any
ccmsidcration of measures necessary to the i)re8ervati(»n of tlic seals,
because that conflict between the different rights of nations could not
be settled by any scheme of regulations which would in ettect take away
the supposetl rifrht of one nation. In their view the seals must perish
beJbre that could be done; and they conceived that tlicy should postu-
late a jiarity of interest between the United States CJovernment liaviiig
the control of the breeding places, and the ]>ela{;ic sealers who <!ould
pursue them at sea All their investifrations, their opinions and their
reports are miide upon that basis. In other words, they conceived them-
selves to be in charge of the interexts of pelagic sealing, then, for the
most part, represented by Canada.
They conceived themselves to be in charjje 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 pelajyic 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 dvtied, 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 t It makes them partisans at once,
just as mucb os my learned friends on the other si^le are. They are
defending, from beginning to end, the interest of pelagic sealers.
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
185
IIow does that operate on tlie measure of eonfldeixe which this Tri-
bunal ishould ]ilace in tlieir conclusionH? It in entirely destructive of it.
Tliat 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 observati(»n, they «re to be treated as
witnesses to those facts of the most unim))eachable character, but,
nevertheless, witnesses testifying un«ler a strong bias. Where, on the
other hand, they proceed to give us their opinionn as to what the facts
are, such (>]>inions are to be discarded altogether as being the opinions
of, not im|iartial, but o^partinan observers. They are like the opinions
of counsel, and they differ in no res])ect from them.
That, 1 venture to say, was an entirely erroneous construction of their
duties as nnirked 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 (juite
independf ntly of the questicm as to whether they had actually observed
the facts themselves. What the two Governments wanted to know was
what thefacts were. They sent these Commissioners there to inquire what
the facts were. Of course they i!«)uld not ascertain them all, or but a very
small part of them, by i>ersonal observation. They were sent, to make
in(|uiries, and to communicate to the two Governments concerned the
results of their inquiries upon questi(>ns of fact, and, therefore, their
opinions were <lesigned to be — and, if they acted in accordance with this
conception of their functions, would justly be — good evidenceof the facts.
They were to wvaVc. joint inquiries too; but 1 would not draw a very
close line between the methods by whicli they gained their information,
whether by joint, or by sei)arate inquiry.
If they had the proper conception of their functions, their opinions,
drawn from the best sources which were open to them, as to tlie fai-ts
and as to the measuies ne«'essary for the preservation of the fur seal,
would be regarded as evidence, and evidence of the highest <'haracter;
but it all depends upon the <|uestion whether tlu'V weie acting impar-
tially, and whether they were acting in accordance .vith that conception
of tiieir duties under which they were appointed.
The I'REMDENT. In point of fact they made separate observations,
did they not?
Mr. Cakter. Oh yes; they did make separate observations. Of
course the general int^'ut of the treaty undoubtedly was that these
observations wei-e to be Joint. If both sets of Commissioners had acted
in accordance with that concejttion of tiieir duties which is marked out
in the treaty, 1 do not think any serious ditl'ereiices would have aiiseu
between them uixm facts which they did not Jointly investigate.
With these observations (concerning the relative weight which is to
be assigned to the reports of the Coiiiniissioners, I proceed to state the
facts in reference to the nature and habits of the seals; and for that
jmipose I shall employ the report of the American Commissioners: tor
it states them wi h the greatest precision, with the greatest a|)pareiit
impartiality; and 1 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 ])arts in which both setsof Connnissioners wereagrcd, ordoyou
intend to make them merely as to the American observations?
j\lr. Carter. I now take the American observations — the rejmrt of
the American Commissioners as to the nature and habits of the fur-seal
as showing what the fact is.
m.
186
ORAL ARGUMENT OF lAMES C. CARTER, ESQ.
The President. Witliont iiotioing wluif the British Commissioners
conciii- ill 1
Mr. Cabteb. Without noticing whether tlie British (Joiiimissioners
concur or r«ot. I shall point out presently that the Jiritisli Coininis
sioners, although their report <'<>ntains a multitude of (ioultts us to
whether this or that is true, of conjectures that this or that otiier
thing may be true, yet when you come to see whether they really dis-
sent from this stattMiieut of facts by the Americ^an Commissioneis, the
dissent will be found to be very inconsiderable.
Now ti> show the facts as to the life history of the fur-seal, I road
from the report of the American Commissioneis:
1. The Northern fur-spal (('<i//oi7mhh« urahiua) is an inhabitant of Ufi-iij; Soa and
the Sen ofOivhotRk, where it broeilH on rocky iislim<lfl. <>nl,v i'oiir I > ■«■<'< liii}; colonicN
nre known, namely, (1) on the I'rihilof iKlamls, lu^lonKini; tit the United fStateH; rJ)
on the ('onnnander iHhtntls, bolnngiog to HiisHia; (3) un Ik'obbfii Reef, btdon^ing to
RnHRia, and (4) ou the Kurile IslandH, belon^ini; to .lapan. Tiie rribilol and Comman-
der IftlandH ure in Kering Sea : Robben Reef it* in the Sea of Okhotsk near the island
of Saghalicn, and the Knrile Islands are between Ve/o and Kanxhatka. Iho Hiieeies
is not known tu breed in any other part of the world. The fur-seals of Lobos Island
and the south seas, and also those of the (ialapa;;i)s Islands and the islaiitls olf l^ower
California, b(dong to widely ditl'erentB|)eciu8 and are placed in dill'ereut genera from
the Northern fnrseal.
2. In winter the fur-seals migrntc into the Nortli I'nritie Ocean. The herds from
the Commander Islands, Robben lieef, and the Kurile Islands move romMi along the
.lapan coast, while the herd belon;;ing to the Prihilof Islands loaves Uuring Sea by
the eastern passes of the Aleutian cliain.
3. The fur-seals of the Pribilof Islands do not mix with tlioso of the Commander
and Kurik^ Islands at any time of the year. In sunnner the two herds remain
entirely distinct, seimrated 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 .lapan coasts in u southwesterly direction, the two herds
being separated in winter by a water interval of several thousand miles. This
regularity in the movenu*nta of the ditferent herds in in obedience to the well known
law that minratory animah follow (lejinite roulrn in miijration and rcliiru year after
year to the same placet to breed. Were it not for this law there would be no such thing
as stability of s]iecies for interbreeding and existence under diverse 2>hysiographic
conditions would destroy all s]»ecilic characters.'
The pelage of the I'rihilof fur-seals ditfers so markedly from that of the Pom-
mander Islands fur-seals that the two are readily distin<;uished by experts, and have
very different values, th(> former commanding much higher prices than the latter at
the regular London sales.
4. The old breeding nuiles «)f the Pribilof herd are not known to range much sonth
of the Aleutian Islands, but the females and young a)>])ear along the American coast
OS far south as northern California. Ifeturning, the herds ol i'eniales move north-
ward along the coasts of Oregon, Washington, aiul liritish Columbia in .lanuury,
February, and March, occjirring at varying ilistaui;es from shore, lollnwing the
Alaska coast northward and westward they leave the North Pacilic ( iican in .lune,
traverse the eastern passes in the Aleutian chain, and proceed at once to the Pribilof
Islands.
'). The old (breeding) males reach the islands much earlier, the first coming tlu*
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. Each male (called a bull) selot t-^
» large rock on or near which herenuiins until August, unless driven oti l)y stronger
bulls, never leaving tor a single instant night or day, and taking neither food not
water. Hoth before and for some timci alter the arrival of the females (called cows)
the bulls tight savagely among themselves for positions on the rookeries and for
possession of the cows, and nuiny are severely wounded. All the bulls are locattul
by .June 20.
I lit' hdiiie of a sjiecies is the area over wlilrli it breeils. It is \m 1! Known to
luitnruliiits that migratory animals, whether nianimais, birds, tishes, or liiciiiliers of
other groups, leave their homes for a part of the year because the clinuitic conditions
or the Ibod 8up|)ly becouu« unsuitod to their needs; and that wherever the honm of
a species is so situated as to pro\ i<Ie a suitable climate and tood supply throughout
the year such species do not migrate. This is the explanation of the tact that the
Northern fur-seals are migiants. while the fur seals of troi>ical and warm teiniterate
latitudes do not migrate.
ORAT. ARGUMENT OF JAMES C TAUTER, ESQ.
187
the
iiok-
locts
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H Ol'
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II of
out
tllH
•HtO
C. I'ho bucUului' Huiilti (liolluHcliiokiu) b«gin to arrive early in May, and large nnm-
bern are on the liaiiliii)^ j;rroun<lH by the ena of May or flrHt week of June.
TLey be^in to leave tlie ihIuuiIh in November, bdt many remain into December or
January, and 8onietiinua into I'l-brnary.
7. The co\V8 bej^in arrivini; early in Jnne, and soon appear in large scliools or
droves, inimenHo nnmbers taking their places on the rookeries each day between tli<>
niitblle and end of the month, tlie precise daten varying with the weather. Tlicy
asseinbh! about the old balls in coiiipact gronps called hiireius.
The harems are complete early in July, at which time the breeding rookeries attain
their maximinii size and compactneHH.
8. Tiie cows give birth to their young soon after taking their places ou the harems
in tlio latter ]i:irt of .lime and in July, but a few are de'.ayed until Angust. 'I'ho
pericxl of gestation is between eleven and twelve months.
iK A single young is born in each instance. The young at birth are about equally
divided as to sex.
10. The act of nursing is performed on land, never in the water. It is necessary,
therefore, for tlie cows to remain at the islands until the yuung are weaned, which
is not until they are four or tive months old. Each mother knows her own pup and
will not permit any other to nurse. This is the reason so m.iiiy thoiisund pupsstarx e
to death on the rookeries when their mothers are killed at sea. Wohaverepeateilly
seen nursing cows come out of the water and search tor their young, often traveling
considerable distances and visiting group after group of jnips before tinding their
own. On reaching an assemblage of pups, some of which are awake and others
asleep, she rapidly moves about among them, sniflin^ at each, anil 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 uerside 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 tilteen meters (fifty teet) before allowing it to nurse. It is said
that the cows sometimes recognize their young by their cry, a sort of bleat.
11. Soon after birth the pups move away from the harems and huddle together
in small groups, called "jiods", 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 ]iups begin to learn to swim. Not only are the young nut 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 mule serves about tifteen or twenty females, but in some
cases as many as fifty or more.
13. The act of copulation takes place on land, and lasts from five to ten minutes.
Most of the cows are served by the middle of .luly, or soon afier 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 lireak 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 h.ive
fasted for three months on tlie breeding rookeries are much emaciated anil exliaiisted.
The young bulls, even when they have siicteeded in capturing a number of cows,
can be driven frem their stands with little ditliculty, while (as is well known) the
old bulls on the hureiiis will die in their tracks rather than leave.
15. The cows are believed to take the bull first when two years old, »nd deliver
their first piiji when three years old.
16. Hulls first take stands on the breeding rookeries when six or seven years old.
Hefore this they are not powerful enough to tight the older bulls for positions on the
harems.
17. Cows when nursing regularly travel long distances to feed. They are frequently
found one hundred or one hundred and fifty miles from tlio islands, and sometimes
at greater distances.
18. The food of the fur-seal consists of tish, 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 dute varying cun>
sideraldy with the season.
20. Part of the non-breeding male seals (hoIluRchiokie), together with a few old
bulls, remain until January, and in rare instances until Februarv, or even later.
21. The fur-seal as a species is ))i-esent at the i'ribilof Islands eight or nine mouths
of the year, or from twu-thirds to three-fourths of the time, and in mild winters
sometimes during the entire year. The breeding balls arrive earliest and remain
1
.^•■ tS
m
i
188
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
cnntinnonsly on the iHlands about fonr mnnthB; the lirecdin<r cowh remnin ahont six
moiitliH, iiiid part of the non-breediuK inalo bohIh about uigfit or nine months, and
aomulinieH thniuuhont the entire year.
22. DuriiifT thit northward niiKnition, no haii been stated, the lust of the body or
herd of furseals leave the North I'aiilic and enter Behring 8eii in the bitter part of
.liine. A few 8i;atter«d individuals, however, are seen during the summer at various
points along the Northwest Coast; these are probably seals that were so badly
wouiid<!)l by pelagic soahtrs that they could not travel with the rest of the herd to
the I'ribilof Islunds. It has been alleged that young furseals have been founcl in
enrly summer on several oceasions along the roasts of British Columbia and south-
eastern Alaska. While no authentic case of the kind has couu) 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 rea<di the breeding
rookeries and must perforce give birth to their young — |)erhapH itrematurely —
wherever thoy may )>e ut the time.
23. TIte reason the Northern fur-seal inhabits the I'ribilof 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 (ivercast sky and a foggy atmosphere to prevent the sun's rays from injuring it
during the huig SMunner season when it remains upon the rookeries. It re(|uireB also
rocky l)eaehe«> upon which to bring forth its young. No islands to the northward or
southward of the Priltilof Islands, with the possible exception of limited areas on
the Aleutian chain, are known to possess the re<|ui8ite coml)ination of climate and
physical con<litions.
All statements to the efl'ect 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.
Tlicir mifrrations Jis described in this report are rougbly rei)reseiited
on tliis map (indicating on map). When they leave the I'ribih)!' Ishuids
in the autumn to po on their Southern miration they take this general
course {imlicatin(f) to tlie coast of California and, comparatively speak-
ing, widely disperse; on their return, following a course nearer tiie
shore, tliey i)as8 tiirongh the Eastern passes of the Aleutian chain
back to the I'ribilof Islands (indicating on map).
The Prksident. You mentioned that they pass nearer the coast on
their return. Do you mean that they follow tlie territorial wateisf
Mr. Carteii. J3oyou mean by "territorial waters" within three miles
of the shore?
The President. Yes.
Mr. Cauteii. I believe never. Scattered seals may occa.sionally go
in, but as a herd, never, I think, so near the shore as tiiat. When they
go tiirongh the passes of the Aleutian Chain — those narrow passes —
very likely they pass within tliat distance of the shore.
Senator Morgan. I think, Mr. Carter, there is some testimony to
show the fur seals sometimes have entered and been captured in the
Straits of San Juan de Fucca.
Mr. Cartkr. Oh, yes; there is a great deal of suggestion here and
there in the Case and Cimnter Case of Great Britain, evidence of a
conjectural character, that seals visit tliifi jilace, and haul out at that
place, an«l breed on otlfir places tiian the Prilnlof Islands; but I am
taking now, as correctly repiesenting tlie 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
ac(!urate a<'.count.
Senator Morgan. Is their statement based upon the same evidence
that this Tribunal has to consider, or is it based upon facts which have
come to their knowledge as experts?
Mr. Carter. Upon both sorts of evidence. Their statements have
the character of evidence. They were appointed for the purpose of
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
189
and
of a
It that
I am
Iv the
Vs. I
with
[ill be
and
lence
have
I have
jseof
jrivinj; their opinions upon these questions and their opinions, from
whatever sources derived, are tlierefore evidence of tiie fa<;tH 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 overwlielmiug weight — of the testi-
mony whicli is before this Tribunal.
Senator Morgan. Suppose the same eft'eot is conceded to the report
of the Commissioners uu belnilf of Great Hritaint
Mr. Uartek. 1 have had o<!casion 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 otiier observations tlian their own, I
have submitted grounds and reasons wiiich 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 i'UEsiUKNT. Do you take the oi)iuiou8 of the American Com-
missioners as evidencet
Mr. Cautek. 1 do.
The Pkksident. And you reject the British opinions as evidence!
Mr. Caktek. I do, in general; and that for the reasons stated, that
the opinions of the AnuM-ican Commissioners have been formed in pur-
suance of the duties in»i)osed upon them by the terms of the treaty,
and in accordance with that conce))tion oi^ their functions which is con-
tained in the treaty; and the views of the British Commissioners are
based upon a ditt'eient conception.
That is all I i>urpose to read at present from this report. It gives a
general des(;rip*^ion 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.
i'here are some further matters of factt in addition to these which I
desire to lay before the Arbitrators, and for this purpose 1 read some
statements in our argumeut which we conceive to be clearly established.
First. In addition to thu climatic and physical conditions abovo onnmerated as
noccHsary to render any ]>Ia(^o nnitable for a breeding ground for tlie steiils, exeni|i(ion
from lioHtilo attack or molestation by man, or otliur terrestrial enemies, slKinld be
iiiclnded. Tlit; defenceless ccmdition of these animals npon tiie land renders this
secnrity indispensable. If no terrestrial spot conid be found possessiag the favor-
able elimate and physical re(|nirementB above mentioned, and which was not at the
same time exempt from the unregulated and indiscriminate hostility of man, the race
woubl speedily jciss away.
8ec(nid. The mere presence of man upon the breeding places does not repel the
seals, nor operate unfavorably npon the work of reproduction. On the contrary, the
presence of m:iu and the protection which he alone is capable of atfording, by keep-
ing otf nuiranders, are absolutely necessary to the preservation of the species in any
considerable numbers.
That statement is, of course, substantiated bj'^ 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 speetlily destroyed.
Third. If man invites the seals to come npon their chosen resorts, abstains from
slaughtering them as they arrive, and cherishes the bleeding aninnils during their
HDJoni n, they will as contidingly submit themselves to his power as domestic animals
are wont to do. It then becomes entirely practicable to scleet and separate from
the herd for slaughter such a number of non-breeding animals as may be safely taken
without encroaching npon the permanent stock.
That statement, if disputed would be abundantly proved by the evi-
dence. We kuow, of course, from the experience upon these islands
190
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
that the mere presence of man does not re|>el the seals at all. Tlioy
uome up and land upon those islands with perfect conihience that Mioy
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 lit 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 beluiul the rookeries, or upon saiuly beajihes
away from them. While thus hauled out by themselves these young
males are, of course, scparati'd 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.
Foiirt)i. If tlie liercl were ezoiiipt from nny depredation by man, its numbers woald
reach a point of e<|iiiiibriiim ut whit^h tlie deticioncy of food, or otlier permanent
conditions, would prevent a fiirtlier increase. At this point, the animal being of a
poly(iamuuB nature, un annual draft from non-broediii); males mi^ht be made by man
of 1()(),(XK) — iiorliaps a larger uumlier — without causing any appreciable pcrmauent
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 repent. It is, 1 sup-
pose, a perfectly familiar conclusion to all naturalists that all races of
animals, if niulisturbed by man, have a tendency to increase, up to a
certain maximum. They are subject to the attacks of enemies other
than nnin; and there are certain causes at all times operating upon
them which would eventually prevent their increase beyonil a certain
amount. If this were not so of course the marine animal races would
fill the aeas 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 mani
Mr. Carter. No; I do not think it is. 1 never heard that it was.
The President. It is not an object of whalingt
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 num. Its means of escape are too great.
Lord Uannen. Is it really a whale!
Mr. Carter. It is suggested to me that the killer-whale is a small
whale, and iu)t taken eitlier 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 |)rotection by man of the seals
does not go to the extent of taking this killer- whale for the sake of pre
serving tlie 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 i)oint would be
detenrincd by the operation of various causes. Sutliciency of food
would be one. That would furnish a natural limit to the increase of
1 '
M
ORAL ARQUMBNT OF JAMES C. CARTER, ESQ.
191
small
jutuie
seals
)f pie
lerd ill
laid, it
lid be
If food
lase of
the herd. Another limit to the innrease 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 anioiif; the innles themselves for
the possesHion of females. Of course, as, presumably, tluM-e is an equal
number of males and females born each year, and as tiie animal is in a
]iiji:h degree polypiinous, one male answerin;; for anywhere from twenty
to forty or Ufty females, there are fierce contlicts between the males for
K;ainin*; possession of the females, and gaining places on these rooker-
ies. '1 liose contests are very deadly, and result disadvantageously to
seal life upon the rookeries in ditterent ways. It leads to the slaugliter
of a great many males; and it interferes very greatly with the jmu'ess
of reproduction during the season of reproduction. The way in which
these contests between the males operate to reduce the numbers of tiie
herd, is evidenced in various other classes of highly polygamous ani-
mals; for instance, the butl'alo — the American bison — now nearly extinct.
That was a highly polygamous animal; and the extent to which the
males were <iisabled 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 i'RKSiDENT. Are the bodies of those animals that are killed by
one another picked up for the use of their furst
Mr. Cauter. No; I ai>pi'eliend not.
The PuKsiDENT. They are quite lost.
Mr. CAK'nui. They are lost. The breeding rookeries are left undis-
turbed, as far as p(»ssible. Such bodies cannot be recovered without
going among the rookeries for the purpose of taking them. When the
8up])ly 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
afl'ecting the normal numbers of the herd. That arises from the cir-
cumstance that the animal is ])olygainous 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 PiiEsiDENT. Do you mean to say that would be.a sort of i)eace-
making, and consequently a sort of taming the animals, changing their
modes of life and a domestication T
Mr. Cauteu. No; I do not mean that, in that sense.
The I'UESiDENT. 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 difler-
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
tiiese 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 fa(!t that you can take a very large number from them witliout in
any degree diminisliing the normal numbers of the herd. Vou dimin-
ish it at first, of course. If you have a herd of five millions, male and
■ m
M
192
ORAL AHOUMENT OF JAMES C. CARTER, ESQ.
female, and take a bnndred thonsand of tlieiri, you diminish tlie liord
at lii'Mt by tliat 1(M),00(); but you will s<Min reduce tlio si/u of tlie licrd
to a number, below which this annual draft of 1U0,0(M) — that ]mrticuiai-
number I assume — will not carry it. They continue the same. Of
c<uirse it is the same with seals as it is with any other ])oIy^auiouH
aninuil, the same as it is with sheep or horses or cows. You can take
a certain number of males without iu any def^ree diminishini; the nun;
bers of the herd. It is a mutter, not of scientitic knowledge alone; it is
a matter not for abstruse invcstipition. It is a matter of common
barnyard observation. That is all it is.
I have stated as a fact whi(th I suppose to be capable of substantia-
tion that, takin;; this particular herd of seals, you can nnike a draft
upon it of lOlMKN^ young nudes without any danger to the stock, and
without diminishing the normal numbers of the herd. What is the
evidence upon which that statement can be supported? Of course
experience must alone determine the question of how many you can
take; because we do not know what the number is of the different
sexes on the island. We do not know how many males there are, and
we do not know how many females there are. We do not know how
many are destroyed annually. We have no knowledge of that sort to
appeal to; and of course we must rely ou experience alone. But we
have a very long experience.
The Prksiden'i . Are the seals counted on the islaudsf
Mr. Caktek. No.
The ruEsiDENT. No one knows their numbersf
Mr. Cak'ieu. 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 lUO 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 u|)on conjecture,
and those statements have received a certain degree of credence; but
the result of the evidence is that it is itnpossible to tell with any
approach even to precision, what the numbers are; and the failure to
reach accuracjiis so complete that it is best not to rely upou any
attempts.
The IMiE.siDENT. As a matter of fact, the herdsman does not know
mnch of his herd, except as to killing part of the increasef
Mr. Cauteu. He does not know how many there are; that is very
certain. He knows, however, that there are a great many there. 1
have said that a draft of 100,000, can be made from this particular
herd. The evidence of that is this.
The Kussians 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-
criminate attack upon them very soon greatly reduced the numbers
of the herd. They then found themselves compelled to take notice of
I
'-il
OKAL AIlOrMKNT OP JAMKS C. PARTKIJ, KS(}.
193
know
I is very
[ere. I
rticulJir
ley did
nature
them;
males
Ition of
(tit ably.
Ion the
indis-
Jiimbers
lotice of
tlic fart that the iinini:il was poly^Minoiis, jiiid that it was mily by the
cxi'icise of cart', and i»y attcndiiij; to natural laws, that tlh-y <'onld
preaeive tliis valuable race. Tluw tlicu iH'ju'aM to (M)nllMt' their drafts to
young males; and ilnally cHtahlishi'd a .system under which tlie draft
was wholly linnted to y«Mni^' males; and that system was fidly and
perfectly established somewhere about ISWi.
The I'RKSiDi'.NT. That system was not yet fully established under
the Hussian rkas(M)f \1U*J1
Mr. Caktku. No; it was not.
The Pkksidhnt. Nor even during the j,neater part of the second
Ikaaeof isi'lf
.Mr. (vAiiTKK. No; not perfectly, it was not.
The IMtKSiDKNT. Hut it was established in the Russian time before
the American possession t
Mr. < 'AUTEB. Oh, fully establisheil for twenty years before the Ameri-
cans took posse.ssion. The l^nssians at llrst. upcui thcestablLslunent of
this system, conlined their dralts of young males to various nund)er.s,
ranging from thirty to Ibrty tlnmsaml, (»r thereabouts. Tho.so were
their annual drafts.
The PiJi'.HiDBNT. And fenmles were never 8lau;;htere<l then before
pelagic sealing was obsi'rved if
Mr. C AUTEB. Oh no; not after this system was fully established by
Kn.s.sia — not after that.
The Pl^E.SIDENT. Whjit became of the females!
Mr. (JAUTEB. They lived their luitural lives and died, subject to such
attacks as their natural enemies made upon them.
The IMiESiDENT. They were never taken for tht^r skins?
Mr. Cab'I'ER. They were never taken. Of course a female might be
taken without damage if she had completed her peiiod of reproductive
usefulness and becanjo barren; but that is a fact that <!aiinot be ascer-
tained; so they were never taken. The drafts were confined, as I have
said, to .something like thirty to fiu'ty thousand young amies. Under
that system, taking no larger nund)er than that, the numbers of the
herd greatly increased and toward the close of the Hussian occupation,
the size of the drafts were increa.sed nuich over thirty or forty thousand,
sometimes going as high as lifty to seventy live thou.sand.
Senator Morgan. Were those dralts from the herd always regulated
by the Ku8.sian 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. (Jabtkr. By the authority of t]iecom]>aiiy; not by the authority
of the liussian Government, .so far as 1 am aware.
Senator Morgan. Still it operated as a rule of action, a law.
Mr. Carter. A perfect rule of action to tho.se on the Islands,
Toward the close of the liussian 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 p()ssession of the
United States in 18G7, the herds were px'obably 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.
^1
M
m
M
■1^
B S, PT XII-
-13
194
ORAL ARGUMENT OP .TAMK8 C. CARTKR, ESQ.
Wlion tliey paKwd into the <;(>ntr<il of tlie United Statt's, and during
tlip year isii8, tiiere wan no re^^iilar autliorily eKtalilislied npon tliu
iHhindH, and conH('<|ncntly the islands were oiten to))redatory exeurNions
of all Hurts; many expeditions were sent tliitlier and made rai*ls upon
tlie islands, if raids they could be called. Thete was nobody there to
]»rovent them, and they took an enormous nund)er.
The I'BKHIDKNT. The Kussian lessees had no more powert
Air. Caktkii. The Kussians had no authority to prevent it. The
United States (iovernment had established no authoi ity.
The I'liKsiUKNT. Was the Hussian company dis.-.)lved by the very
fact —
Mr. Garter. No; but it had no lon^^er any title to the breeding
places.
The Prkhidknt. And no American company had been formed t
Mr. ('ARTKK. No; no new American company had been formed, and
the United States (iovernment had establislied no authority over them.
Bo there was a period of lawlessness there. Anyone could do as he
])leased. 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 indiscrinnnate — upon the seals. In the lirst year they took
about l.'4(^(H)0.
Mr. Justice Harlan. What year was that!
Mr. Carter. 1.SG8. They tried to condne themselves, even then, to
the taking of nudes; and they were greatly aided in that elt'ort, and the
seals were greatly spare<l, by the natural aversion which the natives
who did the driving had a<'quired against killing a female. The estab-
lishment of the system and its h)iig maintenance upon the islaud, of
saving the fenudes, its obviims bcnelits and utilities, its nuinifest neces-
sity to a i>reservation of th- herd, had so habituated the natives to it
that they had acquired an aversion to the killing cf females; and that
aversion had a benetlcial et!'ect even during this period of unregulated
ca|>ture. Still, it is not inj|>robable, and there is some evid«*nce to show,
that there were perlia)is thirty or forty thousand females ken at that
time. Subsequently to that the United States established us authority,
leased the propeity to a oom|».any by a lease, one of the regulations of
which gave the United States power tocontnd the number that siuudd
be taken annually; and under that the les:jees, from the first, began to
take •(»0,(ilM> young males a year.
The I'RKSiDENT. Can the Government flx the number every yeart
Mr. Carter. Every year.
The PRKsiDENT. Aiul alter the number every yeart
Mr. Cartkr. Alter the number.
The Prksiuknt. Without owing any indemnity to the comj)any?
Mr. Carter. Abscdutely at its own pleasure; and it has agents,
superintendents, there, for the imrpose of observing the condition of
the herd in order to enable it to exercise that discretion the more
wisely.
I nmy say further in reference to the slaughter of females, and to the
protections against it, the United States upon ac()uiring the sover-
eignty over the islands, passed laws making it a i)enal offence to kill
any female. It was a penal oll'cnce 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 I'rksidknt. Is that written down in the grant also, that they
are not to kill females?
Mr. Carter. 1 cannot say.
ORAL ARGUMENT OP JAMKS C. CAHTKR, ESQ.
195
to
that
ated
how.
that
>nty,
ons «)f
lonid
an to
sart
y'
(jenta,
ion of
more
they
The I'liKSiDKNT. No other p(>r8on lias authority to kill a sfiil, you
JiiHt Hai<l. There are lawH nf^aiimt tlio killing of wcah. Then if tho
only ones who have authority to kill a seal arc tlu^ coiupany, theu the
(company must be intenliittcd from killing I'eiiiiih's?
Mr. Cakteu. it \h interdicted by law — the law of the United Stiites.
A statute of tlie United States binds even the mtion oi the executive
pivernment. The executive government of the I'nited States could
not i^ive authority to kill a fenuile seal. It is a crime.
Air. Justice IIaulan. Mr. Carter, some of the Aibitrators want to
know whether the eoncession j;ranted to this company was ;;ranted by
the executive department under the authority i»f an act 4»f ('on^jrt'SHf
Mr. Cakteu. It was. There was a special act of Conjjress providin/;?
that the islands nii^ht be leased out ami provision made for puttin;;
the ]M-ivilege up at auction and selling it to the highest bidder; and
the lease was executed in jmrsuance of those provisi«)ns. The govern
meiit was vonipeusated in two forms; Urst, by a gross sum iiaid annu
ally, and then by a royalty upon each seal killed.
Lord IlANNEM. It was only the source of the lease that wo wanird
to get at — whether it was under the direct power of an act of pariiii-
ment, or whether it was done by the executive.
Mr. Carter. It was done by the executive departn»ent of i' e gov
ernment under the authority and in the discharge of its dutien i.a|)osed
upon it by the act of Congress.
The President. liy ' reeial act of Congress?
Mr. Car'JER. IJy a special act of Congress.
The Preside: ;'. Not made for this company, but made for the
leasing?
Mr. Carter. Oh no; not nmde for this company.
Mr. Justice HAiit.AN. In Section 4 of the Act of Congress of July
1st, 1870, it is provided "That tin; Secretary of the Treasury shall lease
for the rental mentioi ed in section six of this act" the privilege of
taking seals on these islands.
The President. The act o*" leasing to such company was the mere
action of the executive.
Mr. Justice Harlan. Under the authority of the act of Congress.
[The Tril)unal thereupon took a recress.]
[The Court resumed at 2.15 j). m.J
Mr. Cartes. WIubu the Tribunal rose for its recess I was stating
that, as a matter of fact, it is possible to take 10(>,(>00 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 beyon«l which it will not go if left to exclusively
natural causes. If man interferes and confines his draft to the young
males he nmy take 1()0,0(M) annually without diminishing the normal
numbers of the herd. The first draft will of course diminish the
number by the nund)er taken; but after the first few y^ars the normal
number will remain the same. 1 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. 1 had si)oken of the irregular and indiscrim-
inate drafts of 1808, when 240,000 were taken in one year. When the
'm
■m
196
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
United States came into possession its lessees began by taking 100,000
annually, and tbey continued to take ; hat number annually until 1.S87 —
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 weventeen 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 306 of the Case of the United States they will there see the
amounts of the draft proceeding from tliis kind of attack by the hand
of man, that is by pelagic sealing. Tiie practice of pelagic sealing
began in 1872. Now, speaking of pelagic sealing, I do not mean that
kind of pelagic sealing that had been carried on always by the Indians
on the coast; I class that kind of pelagic sealing with the causes of
diminution which proceed from natural enemies of the seal other than
the acts of man. The herd had assumed a normal maximum with
that element iniur 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
Bhowu in the following table :
Year.
1872.
i«7;( .
1H74.
1875.
1876.
1877.
1M7H .
No. of
skills.
1, 029
Year.
4,'J49
, 1,()16
, ;;, 042
, n, 700
, '.», ,'"i9:i
1879 12, MKt
18S0 i;j, (iuo
1881 i;t,f.41
18S2
17,
is^;!. ..
9,
18c4
*u.
] 885
i;!,
18>fl
38,
1SK7
.• 3;i
1 SS8
ISSII
.'t7,
40,
lsi»0
181)1
48
62,
No. of
Bkiiis.
700
l»o
UO:i
OUI)
007
8111)
78!)
!I!I8
51'.)
500
* Kuiiibor catim.ited from value given.
Now, during a period of more than ten years, this draft of 100,000
young males was niado by the Tinted States upon this herd without
any substantial diniinntioii of its number. The contrary of that will
be asserted ; at least that proposition will not be admitted to the extent
to which 1 have stated it here. So far as the evidence is dealt witli 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 sliall state the main grounds ui)on which that statement is
8U|)ported. Tlie evidence showing, as tlie United States contends, that
up to the year 1<S84 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
untrustwortliy conjectures tliat a diminution had been observed prior
to that time, but the substantial evidence, I thinli I am well justified in
assuming, confirms tlie ])uKiti()n which 1 now take; and that is, that for
a i^eriod of ten years and more this dr.ift of 100,000 was taken bj the
United States without any substantial diminution of the numbers of
the herd. In 18S4 it will be seen tliat i)elagic sealing had assumed
large proportions, the numbers talten in that year being 14,000, while
in 188;-) 13,000 were taken in tiiis manner; and, as I shall presently show
to the Arbitrators, that number consisted in great part, if not entirely,
of females. Of course this taking of females, operating, as it did, upon
the birth-rate, was a fact of the most important character.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
197
No.
of
skiuH.
l'*,
700
9,
1U5
*14.0U:i
i:i,
ouo
3ft.
HOT
3:t
XlMI
37,
7Kil
40
<.l<.)8
48
51!)
ea.soo
We do not pretend that the United States can continue to take
100,000 annually from that herd if pelagic sealing is perniitt«'(l. if
pelagic sealiug is carried on to the extent of taking five or ten llum-
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 i)ela«4ic sealing is proiiibited, 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 perhajjs a little later, it may have been in 1887,
they began to find it diflflcult to obtain tliese 1(H>,000 young males. They
were not easily discoverable on the sealing grounds. Drives had to be
made more and more frequently in order to procure that number, and
dithculty was experienced in getting it. Piior to that time the same
number of young males was taken, and still there remained large num-
bers of the same class untimched. But when the ravages of pelagic
sealing began to extend, then, the birth-rate being diminished, tlie
young males were fewer in number. Still the drafts were contimied —
they ought not to have been — they were coiitiiuied until 1800, wlien, in
consequence of the difficulty of making the drafts and of the certainty
which then became manifest that too large a draft was being taken
from the herd, the taking was stopped when the number of 23,000 had
been reached.
The President asked how this stoppage occurred,
Mr. (jArter. This was done by order of the (Joveniment 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 y<mng 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 practi(;e of pelagic
sealing was new, and the matter did not challenge the attention of the
authorities on the islands until it had reached considerable i)roportions.
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 Ii^orth 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 (juite
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 nuruber and possibly a larger number may be
taken, but I think the figure I have given is substantially correct. I
think a larger draft could bo made.
I quote from page 80 of my printed Argument, and continue with
our propositions of fact:
Fifth. Omitting I'rom view, as being inconsiderable, suoli killing of seals ns is
carried on by lutliaiiB in small boats from lin; sliorc, there an* two forms of cai)tnre
at present pursued : Tb't carried on iiuder the authority of tho United States upon
the Fribilof Islands, and that carried on at sea by ve!4Bels with boats and other
appliances.
Sixth. The killinj^ at the Pribilof Islands if confined, as is entirely practicable,
to a properly restricted number of non-breeding males, and if pela^'ic sealing is
prohlbitedi, aoec not involve any danger of the extermination of the herd, or of
!-i
198
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
m.
apprccinble diminntion in its normal numbers. It is far less expensive than any
other mode of slaugliter, and fiirnisbes tbe skins to the markets of the world in tlie
best conditi'^n.
That fact is of (bourse incontestable. Tlie 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 ditterence 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 those islands, since the occupation by the United St.ntes, has been
restricted in the inaiincr above indicated. It lias been tiie constant endeavor of tlie
United States to carefully cherish the seals and to make no draft except from the
normal and regular increase of the herd. If there lias at any time been any failure
in carrying out such intention, it has been from sonio failure to carry out instruc-
tions, or want of knowleilyo respecting the condition of the herd. The United
States are under the nnopjiosed influence of the strongest motive, that of self-
interest, to so deal with the herd as to maintain its numbers at the highest possible
l)oint, 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 nuide 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 tlie herd. The United States lessees
carry on their enterprise under the inliuence 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 wliicli is very large, and that annual income can be
made permanent, but only on condition that the uornuil numbers of
the herd are maintained. It is therefore the interest of tlie United
States Governineut to prevent the taking of ex(!essive drafts. It is a
question of self interest — of that interest which operates most strongly
upon the minds of men. What is the interest of the United States is
also the interest of the lessees themselves. The United States 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 conlined to males; and such are the greater facilities
for taking females that tlioy comprise three Con rths of the whole catcli.
(2) Many senls are killed, or fatally wounded, which are not recovered. At least
one-fourth as many as are recovered are thus lost.
(3) A large projjortion of the fenniles killed are either heavy with young, or have
nursing ]>ups on the shoic. Tlie evidence upon these point is fully discussed in the
Appendix.
Kighth. Pelagic sealing is, therefore, by its nature, destructive of the ntock. It
cannot be carried on at all without eneroaehing. pro Uinto, ujion the noriuiil numbers
of the herd, and, if ])ro8ecute(l to any considerable extent, will lead to such an
exterminiition 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 Cou<lert. I have time only to call the attention
of the Tribuiuil 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
ticilities
^t least
jr Imvo
iu the
\)ck. It
lucli an
Ivery
iived ;
Itliive-
lully
Mitiou
what
Here
)olyg-
amons, insomuch that one male siifflces to serve from twenty to forty
feniales, and for a long series of years large drafts have been made
upon the males. The females therefore greatly outnumber the maU^s —
perhaps three or four to one. Therefore the cateh of females woiiM
naturally outnumber the catch of males by three or tour to one. Again,
while the seals are on their northerly ndgration the females are easily
approached and more easily killed. Su<!h are the probabilities; now
wiiat is the evidence as to the fact! The testimony given on our side
by a multitude of depositions proves that the cateh of females is as
nuich as eighty or ninety i>er cent, of the whole number taivcn. That
evidence is derived from individuals engaged in pelagic sealing. In the
next place we have the evidence of tlie furriers who handle the skins,
and who can tell at a glance the dilierence between a male and female
skin; and their evidence tends to show that the proportion of females
is very much greater than seventy live per cent. Against this we have
a very large number of ccmtlicting affidavits on the part of Clreat
Britain, and I may allude to these .affidavits. There are twenty six
witnesses whose depositions were given on the i)art of Great Ilritain
who state that tlie 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 higli 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 sui>erior evi-
dence subndtted on the part of the United States, fortified as it is by
the probabilities of the case, that at least seventy-five i»er cent, of the
catch is composed of females. In the next place, in i)elagic scaling
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 efltect that at least a quarter of the number
of seals that are wounded and eventually killed are lost and not recov-
ered. And the other fact which I have stated as an inseparable feature
of pelagic sealing is that a large proportion of females are either heavy
with young, or nursing mothers. Those killed on their migration North
to the Pribilof Islands are heavy with young. They give I'irth 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 pro])er
to dwell upon now respecting the slaughter of females heavy with
young. They are skinned upon the deck of the vessel, and the your^g
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 focnl, and they
travel great distances, sometimes, it is said as far as a hun<lred 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 sliore.
The details of the killing of these nursing animals- mammals with
distended breasts, are sickening; but I do not dwell upon them here
because 1 am only dealing with the material facts which I shall
endeavor to briTig 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 bo disputed by the other side:
1. The seal is a mammal, highly polygamous, but producing one only
each year. Its rate of iucr se is, therefore, exceedingly slow.
h
■'■-■a
1-f
i
■%
l.i
T
200
OKAL ARGUMENT OF JAMES C. CARTER, ESQ.
2. It is defenceless agtiinst man on the land, and is easily found ana
captured at sea.
3. The present draft made upon the herd by pelagic sealers is not by
a few barbarians to supply their immediate wants, but by civilized man
to supply the eager demand of the whole world.
4. The race may be substantially exterminated by man by either
form of attawk, that on the land, or that upon the sea.
Now as to the land, the iMJSsibility 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 ccmld 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 au 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 Tribuiinl
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,(MtO young males which is made 11 pontile islands — that that is
destructive. Now we coiiten.' that it will stand a draft of that amount.
There is of course a certain number of young males that may be taken,
aud we think it ranges as high as 100,000. If you go beyond that point
you begin to destroy tlie herd, because you do not leave a sufficient
number of males for reproduction. Our position is that the limit to
which a draft may go is as high as 100,000. The position of Great
Britain is that ihat 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 tliem,
the herd will not stand a draft of 100,000 young males annually. Tlien,
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 TuEtJiDENT. Is the number killed by American vessels in-
cluded?
Mr. Carter. On page 207 of the Kejiort of the British Commission-
ers will be found such evidence as we have in the Case showing tlie
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 (lorrected in that i)articular, so that the table from
which I read must be increased by the amount of the American catch,
whatever it may be, in order to get the true figures. But the American
catch cannot be easily determined.
Sir Charles Russell. I thought the figures at page 207 embraced
all.
Mr. Carter. There is a ditt'erence, 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 J 801, whilst the British Report says (58,000. But
80 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 OP JAMES C. CARTER, ESQ.
201
len,
the
y and
u the
rican
idian
the
But
y my
oint
that
it is perfectly manifest that the race can be exterminated by pelagic
sealing: as well as by the sealing ou land, because if it cannot stand
a draft of 100,000 males it most certainly cannot stand a draft of
50,0i)0 females annually. It could not stand a draft of 5,000 females,
because the killing of the females operates upon the birthrate 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 ca]»ture on the land.
Mr. Justice Harlan What is the duration of life of these soalst
Mr. CARTER. I take their productive life to be about eighteen years;
that is, the female seal, according to the lieport of the American Com-
missioners.
Mr. Justice HARLAN. My recollection is that the average life of the
seal is about tifteen years.
Mr. Carter. Now let me call the attention of the Tribunal to the
striking difference between dealing with a herd of fur-seals like these,
as regards keei)ing 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 stinmlated,
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 iuci^ease can be carried 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
in<lelinite extent. With the seals, however, the case is far different.
There are only four places ou 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 diflerence between these animals and do-
mestic animals of polygamous charact'^r, I will proceed to speak of the
difference betwec ^e 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 animal 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
sh(mld 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 au(' obtain the whole benefit which the animal is capable of
afloiding without diminishing the stock; but with other wild animals,
'J- t'l
m
H«i
^#.1
202
ORAL ARGUMENT OF JAMKS C. CAItTER, ESQ.
\^
1 ;,!
Rucli as ducks, fishes, wild game, &c., be can juactise no such hus-
bandry at all.
And here it will be observed how Nature seems to take notice of the
impotence of man and lurnishes means of pei'iK'tnatinj^f the species of
the wild animals last mentioned. In the first phice, she makes pro-
vision for thei)rodnction of prodij|,ious numbers. Take the herring, the
mackerel, the cod ; they do not produce one oidy sit a birtli, but a million !
Tliey produce enouf>h, not only to sup))ly all tiie wants of man, but the
wants of other ia<*es of fishes tliat feed upon tliein. They inhabit the
illimitable rej>ions of the sea; their sources of food are illimitable, and
their i)ro<luctive i)owers are illimitable also, and therefore nuiu can
umke such drafts uj)on 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
Ciipture. Miin lays hold of some of them whi<'h 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
njonths of the year on the land where man can slaughter them; and
even at sea they cannot escajye liim, as the evidence clearly proves.
The distinction between the seals and the domotic polygamous ani-
nuvls and other wild animals is extremely imi)ortant and worthy of
careful observation because of its bearing upon this (luestion of
proi)erty.
Marquis Visconti-Venosta. Do you know any other animals beside
the seal that are situate in like conditions?
Mr. Cabtkr. Noi;^ under precisely the same conditions. 1 hear my
learned friend whisper "sea-otter'' ; but you cannot practise any sort
of husbandry with the sea-otter. It never i)laces 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. (!ar lEu. They are nominally protected by the laws of the United
States; they are a part of the wealth of the Northern Sea. They were
formerly the principalelementof 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 nie 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 sligiit
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 gieat plenty, but the aliundaucc 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 fvom
the cupidity of man; an<l this creature, too, is fast disai)pearing.
In other words, these birds have all the chara< teristics 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 AROUMENT OP JAMES C. CARTER, ESQ.
203
legal
d ani-
iannot
)n can
them
oyiiig
w the
important bearing it has. No man and no nation can say with regard
to the fish in the sea that they can i)rote(!t tlu'in. If they are in «lan-
ger of tiestrnction, tlicy cannot say "We can enforce by our power »
limitation of tlie annual draft to tlie annual increase." There may be
some fish as to wlii<!h that mwy 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 whi(;h resort to that shore, provided other persons are reiiuireil
to keep their hands oft'.
The President And that would give a right of appropriation, in
your view ?
Mr. Carter. Yes; that would tend that way. If tliey could furnish
the protection and no one else could. That would be the teiidcncj'^ of
my argument. I am glad to see that the learni'd Presidciit cat<'iies it.
The consequence of the proved facts is that tlie fur-seal cannot nniiu-
tain itself against nnrestri<'ted human attack. It <!iUinot do it. That
is admitted here. We have a joint report by all these Commissioners
which is to the eflect that the fur seal is at present in the prcn-esis of
extermination, and that this is in consequence of the hand of nian.
The treaty itself under which you are sitting admits it: for it admits
the necessity of regulati(ms 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 learnetl
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 (lisi)ute betwren
us as to the fact. These seals are being exterminated; and tiiat means
thiit the race cannot maintain itself against the hand of man unless the
assaults of man are in some manner restricted and regulated. As I
have already shown, this consequence of the inability of the race to
maintain itself is inseparable from the killing of females. That race
cannot maintain itself unless the slaughter of females is prohibited.
It is a mammal, producing one fit 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 oftspring is jn'oduccd.
This inability of the race, this infirmity of the race to hold its own in
presence of the enormous tenintation to slaughter which is hehl out to
man, is inseparable from the slaughter of females. The killing of males,
if it were excessive, would produce the same eH'ect. Ko doubt about
that. We do not dispute, or deny, that. All we say is that you «au
carry the killing of males to a certain point without any injury whatever.
The President. Mr. Carter, may I beg to ask you a question?
Mr. Carter. Certainly.
The President. The American Company, the lessees of the Pribilot
Islands, consider the fur-seals as their property, or the |)roperty 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 tliat the United States allowed
pelagic fishing by some of their flshermen on the American coasts, and
can you state, as a niatterof fact, whether the Company, or the lessees,
have applied to the United States Government to nnike an enactment
to prevent that fishing, that pelagic sealing, according to the right
which has been given to them. If 1 understand well y<mr jun'imrt, and
if your purport is the same as the lessees or the Ameriitan 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 tisher-
f'f
m
204
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
men. Do you not think that they have a right to complain, and I
inqnire whether tliey ever did complain to tlie American (lovernment
since 1884 for instance, which is the date yon state as being tlie initial
date when they began to perceive that pelagic sealing was ofteiisive 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 destiuction.
They would have a moral right undoubtedly to complain and a very
strong equity to conq>lain; but under the circumstances tliey have not,
for the very first thing the United States Government did was to pass
laws against it.
The President. On the islandsf
Mr. Carter. Oh no; on waters as well.
The President. In the adjacent waters. It did not pass laws
against American lishernien doing it elsewhere?
Mr. Cauter. lint the United States Government exercised all the
power which Congress at the time supposed it had to i)revent pelagic
sealing. It supposed that in prohibiting jjclagic sealing over the waters
of Alaska — that is the phrase used — it embraced all those waters which
it had acquired from Itussia by the cession. The western boundary
was that line which is seen drawn down there {indicating on map).
The President. That is not the question.
Mr. Cakter. 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
It does seize whenever it can, and exercises its
utmost
these
enactments
diligence in seizing any American vessel caught anywhere in
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 prote(!tion, have they a legal right as
well as moral right to comi)lain of the United States no*^ 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; 1 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 interj)retation 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
1 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 anr having let the
privilege of taking these seals on the Pribilof Islands to us, we thiuk
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
205
laws
these
rotect
et tbe
thluk
that yoii are bound — bound in the exercise of your just powers — to
repress this i)ehigic sealing." I think tliey would have a riglit to insist
upon that.
The President. I would eall that a legal right.
Mr. Cauteu. No; I do not (piite 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 tlie seavS. We executed to
you this lease. You knew what the laws were. You knew wliat pr«»-
tection you would get. You did not ask for anything more. Having
accei)ted your lease under those circumstances you must be content
with it."
The President. In fact they have not asked for anymore? Tlicy
have not asked for an act of Congress, a statute against American
pelagic sealing?
Mr. Carter. I cannot sjieak uijon that point. I know of no evidence
in the ('ase.
Mr. Phelps. They have.
Senator Morgan. I would like to say, Mr. Carter, ia that connection
that the number of seals that is permitted to tlie 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,tK)0 seals annually, whi<!li
number might be reduced by the Government of the United Slates
without any liability whatever for damag<'s, according to their estimate
and opinion as to what public policy required. Under the lease of lS!tO
they were allowed to take not exceeding (>0,(>0() under the same condi-
tions. So that whatever number the United States lixes annually or
at any time of the year they choose to fix, it is the number that tiiey
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 directt or indi-
rect in the question whether we are preserving the seal herds or not if
they get their number.
The President. They have no direct right to the average of the
herd?
Senator Moroan. Not at all — not the slightest.
Mr. Carter. I should still be disposed to agree with the suggestion
of the learned President even under those conditions.
Senator Morgan. That there would be a moral right?
Mr. Carter. That there would be a moral right.
Senator Morgan. I do not think so.
Mr. Carter. That there would be a moral right in the lessees to call
upon the United States to exercise that authority to preserve tliis herd ;
for they might argue : If you did exeicise that authority this herd would
be in a condition in a few years to give us, instead of (iO,()0(>, 1()(),(K)0.
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 ai)ply 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 imdiibition or within the
regulations which they have prescribed. The Congress of the United
States have prepared in advance so as to extend their penal and other
laws over the area that this Tribunal is to determine upon. It has done
all that can be done under the circumstances.
Sir Charles Eussell. That was merely a ])rovision to enable the
United States to give legal effect to any regulations, if any, that should
be enjoined by this Tribunal.
■■'(^
)
; ..:,i>^
; ''IT.i
MW
I M
206
OUAr. ARGUMENT OP JAMES C. CARTER, ESQ.
m
i
Heiiator iMoikian. That was iu the hope of a proper adjustment of
this ijuestion.
Mr. (jAiJTEii. It Avas a hiolviiij; forward on the part of the United
States to a concnnence in any ineaHnros which this Tribunal might
adopt whicii wouhl insure tiie incservation of tlie fur seal.
Tiie Tresidknt. What I wanted to come to, if you will allow nie to
make n»y point a little more clear, is this: According to the 5th ques-
tion of our article G we have to determine whether there is a right of
l)roperty and i>rotection in these seals. 1 think your contention is that
there is u legal right of i)roperty and protection.
Mr. Carter. Yes; it is.
The I'RESIDENT. 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 jtroperty and protection. 1 think what Mr.
Senator Morgan Just explained accounts for that.
Mr. Carter. Yes.
Tiie Tresident. I wanted to make the distinction clear.
Mr. CHARTER. Yes; I appichend. If these islands were not iu the
possession of the United States Government, but were in the posses-
sion of private individuals, I think there would be a moral right ou the
part of those individuals to call n])ou 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. JVIy next step will be that having that right of property,
they have a right to go there with force and protect it; and my next
stej) 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 i)elagic sealing.
Mr. Carter. They do not i)rotect 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 thay
were to act against their own citizens engaged iu 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. Car'I'eh. 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. Tlie executive department of
the United States submits questions of law, takes its position, here. I
am lieie for the purpose of arguing them. Perhaps 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 ow ii conclusions. They have taken the ground and have
eviiu'x'd their intention of i)r()tecting these fur-seals, and protecting them
for their own b"uetit, against tlie attacks of pelagic sealing, from what-
ever (|uaiter — their own citizens or others. They nujy have supposed
that their pow ers were contiued to Bering Sea, and therefore limited
ORAL ARGUMENT OF JAMK8 C. CAIMKR, ESQ.
207
next
iition.
goes,
xecu-
jut of
e. I
ess of
lea-
aews
have
Iwbat-
)Osed
lited
their juiiHdiction to the Beriii}; Sea. They may have acted upon that
asHUiiiption— ail enoiiecais one, in my Judjrmeut.
Mr. Justice Haelan. Tlie President refers to the lailuroof C()n<,nes8
to enact a statute forbiddiiijj American citizens from taking seals on
the ^'orth I'acinc. Snpposing that (Jongiess could ,)ass snch a law,
and did, what effect wouhl tiiat have upon the pelagic sealing, if the
subjects of Canada were left at liberty to pursue itf
The 1'hi:sii)i;nt. Tliat is another question.
Mr. CAin'Kii, It would tend, possibly, to diminish the attacks, to
some extent; how much, would be a (incstion. Of t'ourse, it might be
argued by the Congress of the United States, it migiit 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 theuj".
The Prp:«ide]nt. Vou want to convince us first and the American
Congress afterwards, while you ought to convince the American Con-
gress tirst and us afterwards. That is what 1 mean. It is merely a
point in my mind.
Mr. Cauteb. That the Ameri<!an Congress, after this Tribunal shall
luive established American rights, will hesitate at all in exercising the
utmost degree of protection, is scarcely to be appreheiuled.
The President. Hut it might have been in ai gument before us that
the American Congress had alieady admitted the right.
Senator M(»RGAN. You will reinendjer that Lord Salisbury, I think,
or Lord Kosebery, in discussing the nio<liis rivcndi wiiicrh is now gov-
erning this matter, niad(^ the objection that the British (Jovernment and
the American Ciovernuu'iit would be tying their hands by agreeing upon
the prohibition of pelagU! sealing during the peiuleneyof this litigation,
and permitting other nations to come in and take the seals at their will.
IJoth 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 is an argument bearing upon the
merits of this question of i>roperty, I nnist 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 ycmr own marauders for tiie benefit of the
marauders of another mition, is not a very obvious one.
There is one other fact perfectly indisi>utable in regard to ]»elagic
sealing, and that is this: the moment its destrucfive effect rea<:lies 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 establishnjent of two or three
hundred Indians which are kept upon the islands — then, of course, that
industry nuist be given up; and when that industry is given up, that
population nnist be withdrawn. They cannot live there without outside
support. And then, of course, all i)rotection to those islands against
the marauding excursions of people who waut to kill them ui)ou th«
''4
208
OUAL AROUMKNT 0.^ JAMKS C. CAIfTKK, K8Q.
laiitl is {>;one, and when tlint guard is withdrawn and all inotrction
talvun away, tliat lieid uf Hcals is exterminated. It is extei initiated lor
the United States. It is exterminated tor tliese lessj-es. They <'an no
longer get anything out uf it. It is exterminated tor the wliole worhl.
It is externumited even in respect to these pelagic seuh-rs, for tlieir
oc(;npation is gone also. Tliey are all gone, in a comnuin calamity, and
gone very ((uiek, too, after the ginii'd is withdrawn, and that will take
place Jnst as soon as it ceases to be protitable to maintain it there.
N(»w, there is a snpertlnity of ycmng nniles. That snpeitlnity of
yonng nniles 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 — althongh it appears to be nnui-
ifest— that there is a 8U|)ertluity of yonng nuiles, is one which I wish to
place beyond doubt. We say it amounts to 100,(>0(); but whether it
amounts to 50,000 or 100,0(M) or 200,000, there in a supertluity, and that
Huperlluity can be separated and taken by the United Htatcs on those
islamls without injuriug the stock. As 1 say, that seems to bo self-
evident, but I do not know that it will be adndtted, and I choose to
state one or two circumstances wliich prove it.
We have witnesses long resident ui)()n 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
Kussia, after her occupation of the islainls, and while she did not con-
fine her draft to this superfluity of nudes, adoi»ted a course which
tended towards the destru(!tion of the herd and canie very near de^stroy-
ing it. It is proved by the fact that when she corrected her methods
and contined 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, iu the next place, by the exi)erienceof the
United States during more than ten years of their occupation, an<l
until the excessive drafts occasi(nied 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, ft is substantially, I think, admitted by the British
Commissioners themselves.
In Se(;tion 37, at page 7, of their report, they say:
37. During the early years ot the Russian control, the conditions of seal life wore
very imperfectly understood, mid 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, whicli
followed from the discovery that a much larger number of males were born than were
actually required for service on the i)reeding "rookeries." The killing of females
W.1S i)ractically forbidden on the I'ribilof Islands about 1847, and on the Commander
Islands probably about the same date.
I pass to section 41 :
41. It is also noteworthy, that for many years previous to tlie 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 ligure to about 30,000, witliout 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 efBcient protection
is much more easily afforded on the breeding islands than at sea. The control of the
ORAL AROUMKNT OF JAMKS C. CAUTER, KSQ.
209
and
ifo wore
JA rapid
jutuiilly
first of
, which
\An were
females
imander
iRiissiau
igoiueut
kIs was
^adually
3arently
[)tection
Dlofthe
niiinher of MeiilH killed on ahuie inlKiit euHlly he ninde ahHoIiite, and, hh the area of
tliu hri'i'diiiK ishiiiilH in hiiiiiII, it Hliouid not he diriiciiit tu (ioiiiiileteiy Htit'uguitrd tlieHH
tioui r'lidiiiK hy ontnithTs and from other illegal acto.
And Section 327, on pii^e .OS:
327. TiiTiH, on tiie rrihyloll' InhuxlH, one particiilnr inntanee IiaH heen recorded,
when, in conMei|neiic<> of the Ioiik iiei'HiNteiice of lit'ld-ice ahoiit llie is|;indH, tlie f>ea' '
were very ureatlv dt';ilctfd. I'iiis oeenrred in 1><;U), « hen, a(C(»idinK to native ooiinl,
the nnniher of ailiiit !<ealH on St. I'nnl Island wa^ re(lii<'(!d to alxnit 4, (MM), and the
greater ]>art ol' tlic sinall ninnlier of Heals killed in that year consiHti'd of pii])<i.
other thoMglit loxs diHastroiiH inst.'incen, of the (tame kind have oeenrred nince, nn<l
a Htndy of availiiiiji' inrornintion resjieetin^ the iinioiint and position of the ico in
UeLrinK '^ea in varioim years hIiowh that Hni'h adverse eonditionN nniy roenr in any
year, llmugh prohahly Heldoin with the same intenNity as in lKi6.
That serves to show from how low a point the numbers of the seal herd
on the ishmd, under tlie practire of liinitiii^ the draft to young nuilc.H,
inciea.sed to tlieir .subseiiuent iiiii;;iiitu«le.
1 now read section O'lU, page 114:
659. The system adopted for the regulation and working of the Prihilotl' iHlands
hy the Unitid States (Jovirninent, when its control had lieen e8tal)!iNhed, and after
the irregular and excessive killing which at tirst followed ou the withdrawal ot the
UiisHian authorities, wassuhstintially that which had gradually heen introduced by
the Russians, as the result of their jjrolonged experience, hut with one very impor-
tant exception. '1 his e\co])tion related to the number of seals allowed to be killed
unnually. The number was at this time suddenly and very largely increased, being
in fact more than doubled, as is elsewhere ]iiiinti'd out in detail; an<l while the
experience uf many former years showed tl<at the Russian system, with a limited
annual killing, might be nuiiulained with .t roasniuible certainty of the continued
well-being of the breeding grounds, it had in fact, according to the best available
information, resulted In a gra<lual and nearly steady increase in tint nunilior of seals.
The uinch lander number permitted to be killed under the new regulatiuna at onco
removed the new control into the region of experiment.
Tliat shows that tht former control, the liusslan control, at least,
resulted in a steady, and gradual increase in the number of seals.
I continue to read,
G60. Theoretically, and apart from this question of number and other matters inci-
dental to the actual working of the methods employed, these were exceedingly
pi'(i))er and well conceived to insure a large continual annual output of skins frimi
the l)ree(ling islands, always under the supposition that the lessees of these islands
could have no couiiietitors in the North racilic. It was assumed that equal or prox-
imately e(|nal numbers of males and feniales were born, that these were HMbject to
eijual losses by death or accident, and that, in conse(|uenco of the polygamous habits
of the fur-seals, a large number of males of any given merchantable ago might bo
slaughtered each year without seriously, or at all, interfering with the advantageous
proj)ortion of males remaining Cor breeding purposes.
6til. The existence of the breeding rookeries as distinct from the hanling-grounds
of the young males, or holluschit^kie, was 8U))po8ed to admit, and did in former
years to u great extent admit, of tliese young males being killed without disturi)ing
the breeding animals. The young seals thus "hauling" apart from the actual breed-
ing grounds were surrounded by natives and driven olf to some convenient jilaco,
where males of suitable size were clnbbe ' to death, and from which the rejected
animals were allowed to return to the sea. The carca.sses w ere skinned on the kill-
ing ground, the skins salted, and at a later date bundled in pairs and si ipped, with
such duplication or checking of connt as might bo supposed to alVord g larautees to
the agents of the Government and to the lessees that the interest of botL were fairly
treated.
6()2. There can be no doubt that if the number permitted to be killed had been
tixed at an amount so low as to allow for excc]itional 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 havel)eeu contintied without general
damage to the seal life of the Pribilof Islands, ana very 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
a])])ropriate methods, and in spite of the important change from n.atural conditions
which any disturbance in proportion of sexes involved, if the demands made in the
B S, PT XII 14
:4
I am
,. iia
m
210
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
matter of aiiinial tako had been inoderato; but when the inunber fixed for killiny;
resulted, as has been sliown, in an averiifje slanj;iiter of over 103, (tOO seals, it bore so
lar<;e a ]iro)iortion to tlie entire number of animals resi)i'tin<; to tlie islands as to lead
necessarily in the loujj run to serious diminution. This decrease continued, on tin-
whole, in an increasiiifi; ratio, beinj; due not only to tlie aetual nunibrr of seals
Hlant>litered, but also to the uiimberH lost in various ways ineidental to the meth(ld^
of eontrol and modiit operandi on the islands, which loss, thoiij^h formerly a matter
of minor im)iortanee (becanso counted aj^ainst a larj^e annual surplus), in the face
of the gri'atiy <locreaHed numbers, became a very serious addition to the total of dim-
inution. Ill short, from a transcendental point of view, the metliods jiioposed wc^re
aiii)ro])riate and even ]>erfeet, but in ]»raetical execution, and as judj^ed by th(;
results of a series of years, they proved to be faulty injurious.
The President. Will you be kind eiionjih to reiiiiiid as of the tnaxi-
mniii annual uuniber ol' the slaughter under the Russian ruie?
Mr. Caeter. At first it was somewliere iu tlie neigliborhood ul'
30,000. In the last years of their occupation, it was increased to some-
where from 50,000 to 70,000.
Sir Charles Kussell. You will find, sir, a table givin<!: the fijjures
at page i;5:i of the British Commissioners rei)ort beginning in 1878 and
going down tolSOl.
Mr. Phelps. Tliat is mere assumi)ti()n.
]Mr. Carter. We do not concede tliat to be a correct statemeut.
Sir Charles Russell. It purpoits to be a correct statement.
Mr. Carter. It purports to be tliat; in fact it is not even approxi
niately correct.
The Presidp;nt. You do not know tliat the Russian (iovenimenthad
the same rule as the American Goveiunieiit had of fixing a limitation
for the annual takingf
JMr. (Urter. It did have the same rule.
The President. The same rule all the time?
INIr. Carter. After the system was established of limiting the drafts
to the males.
Semitor Morgan. In 1847.
Mr. Cai{TER. The learned Arbitrators will perceive from these pas-
sages which I have read from the lirif ish rejMirt that there is a full and
uiKiualified concession that the methods thus employed by the Ameri-
can (iovernment on the islands jire perfect in theory, and the only
defect alleged in relation to them is in their i)ractical execution; and
the only i)articular in which they mention a fault in the execution ot
tho.se metliods 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-
])laiiit they make of the exe(!ntion in these methods is that too large a
draft is <'rawii. My proposition is that there is a i)oiiit at which it is
])crfectly safe to make a draft without any danger whatever to the
lierd. What that i)oint may be is another question. We say 100,000;
and shall be able to make that good.
I have gone thus far only ujuin facts which I conceive either to be
admitted, or overwhelmingly established — established in such a man
ner that wo may say they are beyond disjiute. There are a good many
other particulars in which there is very considerable confiict in the evi-
dence. We have our own assertions in res|)ect to those points upon
which this confiict exists; and we shall endeavor to satisfy the Arbi
trators that our view is co-'ect; but at this point I choose to say that
in my view they are not material upon this (juestiou of ]U'operty. I want
to state a few of these ])oints 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 proi)ositiou.«.
, V-
iir Ivilliufi
it bore Hi>
as toh^iiil
I'd, on tlu'
r of NOiils
B nictliixl.-.
• a tiiiittcr
n thti t'lu'f
till of <liiii-
losed were
ed by the
lie maxi-
?
rliootl of
. to some-
le flguves
1878 and
iient.
silt.
I appro xi
inionthail
liniitatiow
the drafts
liese pas-
full and
lie Aiueri-
tlie only
ition;
and
'cution ot
[iently low
the coni-
|((o large a
rhii'h it is
to the
100,000;
for
It her to be
•h a nian-
lood many
[in theevi
lints upon
the Arbi
say til at
. iwant
?vial upon
|crty with-
ORAL AFOUMENT OF JAMES C. CARTER, ESQ,
211
H
The following thiugs are more or less disputed; and I do not base
any part of my argument at i)resent upon them. In the liist place, it
is said that uot so large u, proportion as 7.1 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 pur])oses 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 agriHHl 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.
F(mrth. It is not agreed tliat coition takes place on the land. They
assert that it takes phice 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 i)lace between the Russian and the A askan herds.
There is uo evidence that there is the slightest comiP'iigling; but as
far as conjectures go, it is only to the effect that theve may be a com-
mingling of some few individuals — wholly unimportant.
Sixth. It is not admitted on the jiart 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 live 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 purjioses of my
argunuint.
Again, it is said that raids take place upon the islands and a ywint
is made that a great many seals are lost, not by ix'lagic sealing, but by
illegitimate raids upon the island by sealers Avhich 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 abeady raid, 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. AVe can find out
the right number. Experience will tell ns that; and of course self-
interest, the strongest motiveoperating upon men, will iusure our obedi-
ence to its dictates.
Then again it is said that the lessees of these islands are careh'ss
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 c(mceive all those statements are unfounded; but even if they
were true, they Avould not be nmterial. They would simply show we
had been guilty of negligence there. Tliere is nobody who is under so
strong a motive to practice diligence as w'e 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, 18t>3, at
11 : 30 a. m.]
THIRTEENTH DAY, APRIL 2i«S 1893.
'P
The Tribunal met pursuant to adjournment.
The Pkesidem'. Mr. ('arter, will you proceed?
Mr. Carter. Mr. President, tlie ])rincipal part of my argximent
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
tliey were pursued and cai)tured ; and that review of facts led to tliese
conclusions as matters of fact: In tlie first ])lacetliat 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 oi)portunity
it had always improved and still improves; that no other nation, or the
citizens of any other nati(m, have the power, or the ability, to do that
thing; that the race of fur-seals could not maintain itself against
unregulated and unresti'icted attack ; that it could be destroyed at a
blow almost on the land, and it couhl also be destroyed, although not
80 rapidly, on the sea; that all pelagic pursuit of the animal was neces-
sarily destructive in its tendency, and if carried to any considerable
extent would work an entire commen^ial extermination of the race in a
comparatively short period of time; that it struck at once at the stock,
and not at the in(!rease; that its depredations were princi])ally aimed
at the females, and ntjt at the superfluous males, and that no discrimi-
nation could be made.
1 am now to call attention to the inquiry how the question of prop-
erty is affected by those facts in the light of the priiicii)les whichi have
endeavored to lay down respecting the institution of proi)erty and the
grounds and reasons upon which it rests. 1 wish to apjdy those prin-
ci])le8 to the question of proj)orty in the fur-seals, and bring those
principles to bear upon the conclusious of fact to which I yesterday
arrived.
Let me recall the main proposition early established in the course of
my argument, and which 1 have endeavored to keep in view thiough-
out, namely this: That the institution of ])roperty extends to all things
which embrace these three conditions — first, that they are objects of
human desire, that is to say that they possess ntilih/. Se 'ond, that
they are e.vhanstible, that is to say the sup]>ly of them is limited, there
not being enough for all. And, third, that they are capable of exclusive
ai)propriation. All things of which those three conditions can be i)red-
icated are property and nothing which does not unite all those condi-
tions can be regarded as property.
Con<'erning the first two of these conditions, no debate whatever is
necessary. The utility of the animal is admitted. That they are; objects
of extreme human desire is conceded. That the supply is limited is
also conceded. The race is exhanstible. There is not enough for all.
The only question, therefore, as to whether they are property or not,
nmst turn upon the determination of the ])oint irhether or not they are
auneeptible of exclumu: appropriation. That is the interesting point in
reference to the question whether seals are property or not. Are they
capable of exclusive appropriation by man?
212
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
213
lover is
lobjects
liited is
Ifor till,
lor not,
Ihey are
\o'mt ill
re they
In the first place, we must have a very dear perception of what is
meant by the term ^'■exclusive approj)rUition''\ Wiiat is it that must be
(lone in order that a thinj? may be exclusively approi>riated ? Is it neces-
sary that the thing should be actually in man u, as it were — in the actual
possession of the owner so that no i)ersou 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; tmd possefi,sion and otcnernhip were in those early ages iden-
tical, or rather they were confounded. Tiiere were no recognized rights
of i»roi)erty, except in respect to such property as the owner was in the
actual jwssession 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, wiiich
he inhabited, were all in his actual possession, or under ills immciliate
power. They could not be taken from him without aii act of force, lie
was always present to defend them; and there were no otlier subjects
of pro])erty. But we see that as the institution of jnoperty is developed
his actual, immediate possemion is no longer necessary. A man may
own not only the half acre of ground which lie 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. lie may not be present
to defend it; and yet the law stamps his pcrsoiialiti/ upon it so tiiat it
becomes his property, a i)art of him, an extension of his personality to
that portion of the material world, so that when that thing which he
thus owns is invaded his rights are touched, and his personality is
touched. Here we see the difference between the two conceptions of
poNsession and ownership, originally closely identiiied, ii; separable from
each other, as it were, confounded together; bui with tlie jn-ogress 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, lint
I may read one or two that are quite signilicant. I read from page 82
of the printed Argument of the United States an extract from the writ-
ings of a very distinguished E:!glish jurist and writer upon general Juris-
prudence— Mr. Sheldon Amos. He touches upon this subject:
Till' fact, or inatitntit)u, of ownersliip is such nii iudiHiioiisaMo condition to any
nmti'riul or sociiil jirojiress that, os'eii tlirouijiioiit the jierioil diirinf^ wliicdi tho atten-
tion of law is concentruteil upon family and villM^jd ownersiii]), tlie osvniTHliip on
the i)art of individual persons, of tJiose things whicli an; ntuulcd for the sustenanee
of ])by8ical life, becomes inereasinj;ly rei'()i;ni/eil as a iiossiliility or necessity. One
of th<' most im])ortant steps out of savaj^ery into civilization is marked liy the fact
that tlie security of tennro depentls upon some fiirthi^' condition than the mere cir-
cnmstance of i)os.session.
The use of the products of the earth, and still more, the inaiinlacturo of them into
novel substances, consists, jtenerally, of <'ontiimou8 j)r()ccsscs extending over a
length of time during wliich the watchful attention of the worl<er can only bo inter-
mittently lixed upon all the several points and stages. The methods of agriculture
and grazing, as well as tlio simplest applications ol tlio principle of divisionof labor,
similarly ])resuii])ose the rejjeatcd absence ol the farmer or meelianic from one part
of his work, while In^ is bestowing undistraetcil toil upon anotlier part; orelso entire
absorption in one class of work, coupleil with a steady reliance tliat another class of
■work, of equal imi)ortance to himself, is tlie object of corresponding (exertion outhe
part of others.
In all these cases the mere fact of physical holding or ponseanion, in the narrowest
sense, is no le: t whatever of the interests or claims of persons ia the things by which
they are surrounded.
ri
i H:
n I
214
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
■I
The extract from a French writer, Toullier, which follows in a note is
so long that I will not read it; bnt it is to tlie same effect of iniirkiug
the distinction between 2>osNCSNion and ownership, and showing that
ownership is a dev<'lopment in the course of civilization of the institu-
tion of property, and that ownership at ])resent no longer depends upon
actual iKiSsession at all; it depends njjon rights which tlie law gives.
If the law chooses to stamp the personality of the owner upon any i)ar-
ticular jnece of i)roi)erty, however large, or however extended, whether
it is in his possession, or out of his possession, then that object upon
which the law thus stamps the quality of owiicirship, 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. N<)w, 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 irhat
extent will the law stamp the quality of ownership upon thinf/s tvhich either
are not possessed, or cannot be actually j^osscssed, by any owner during
a considerable x)art 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? Tiiat 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, tlie case of land. As 1 have
already said, land may be owned by a ])rivate individual to any extent.
He nmy own a province if he can acquire it. The law places no limit
U])on his acquisition and it will defend him in the enjoyntent of it.
Why is it? As I have already shown, the institution of property does
not «lepend upon any arl)itrary reasons, but upon great social reasons
and great social necessities; and, therefore, the answer to the <piesti(»n
why the law allows an extent of i)roi)erty to be owned by a nmn wiiich
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 labor in 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 al)out. 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 cai»able of direct actual possession by the
owner, yet in view of the prodigious advjintages which are acquired by
stamping the character of owuershi]) upon them, the law concedes that
ownership, assigns the title to an individual, and i)rotects and defends
him in it.
The same is the case in reference to all movable property, all products
of manufacture and of labor — agricultural implements and tools, goods
of all descriptions. A man may own magazines full of them which he
cannot by any ]>ossibility, by his individual arm, protect and defeiul.
"Why is he permitted to do this? Because the world cannot otherwise
have them They are the price whi(!h the world must necessarily pay
for these possessions, or otherwise it must do without t liem ; and it cannot
do without them and support the population which civilization brings
upon the earth.
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
215
Take the case of useful domestic animals; the same thiiij; 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-
eity of the public, and still his title is com]>lete and perfect. In the
barbaric ajjes a man could own but few, and wlu-n the number increased
thev 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 tlie purpose
of increasing- the stock of domestic animals; and therefore a title is
awarded to as many as a man can brinju' into existence. The great
prairies and wastes of the interior of the United States, and of lai'ge
regions in South America are fed upon l»y cjmntless herds, and yet tiie
title of the owner to every one which he can identity is distinct and
absolute. That is for the same reason. You could not luive tiiem 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 jn-eserve
the principal thing without destroying it and yet i)r<)du('e a great
increase for the use of mankind. The cultivator of land, the title to
which is assigned to him, does not waste it. He does not destroy it.
He does not convert it into a desolation, he does not extract its rich-
ness from it and then leave it incapable of further product. He cul-
tivates it. lie manures it. IJe not only extracts a great product from
it, but he increases its ability for further production; and so also in
regard to the races of animals. The stock is not invaded so long as
you allow individuals the ownership of whatever they are able to pro-
duce. They preserve the sto(;k everywhere, and they increase over-
whelmingly the product wiiich can be attbrded for the uses of mankind.
Rut 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 i)roperty beyond actual, literal, jxtssession. It refuses to consider
the things as the subjects of exclusive approi)riation. 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
<;annot do it. He can only take them indiscriminately. He can 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, ai't, or labor on
his part, but because nature has made vsuch an enormous ])rovision that
they are practically inexhaustible, or because nature has furnished them
with such facilities for escape that man cannot capture any considera-
ble mimber of them. Conserpiently in referen<re to all of these wild
animals where the award of ownei'slii]) to an indivi<lual man would pro-
duce no great social blessing, in other words, where there are no so. ial
reasons for awarding exclusive possession, an exclusive possession is not
awarded, and, the thing is regarded as incapable of exclusive appro-
priation.
But, even in the case of wild animals, although the institution of
property in respect to them would notaccom])lish any social good, would
not prevent their extermiTuition, 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 establisriment of what are called "game laws,"
nioie or less elfective for pres«Mving 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.
^i
21G
ORAL argi;mi:nt of .tames c. cartkk, esq.
ti I'.
There are some aninmls which lie Dour the boundary line betwooii the
wild iiiul tame, and it is very interesting to see how tlie law deals with
these, and how i)erte(;tly in accordance with the principle I am endeav-
oring to sustain. Take the case of bees; they are perfectly wild. iNoth-
ing can be wilder. Is^evertheless man can induce the: i to return to a
particular si)ot; and in consequence of that(.in take from the bees their
product, and can tlieietore increase the production of hom-y, — a most
useful article — to an almost indeliiiite 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 su])i»lied, and the bees themselves Would
be taken away; but if you award a i)roperty to man in such bees as
may take up their abode in the hives prejjaied for them; permit him to
defend his title to them, and to every swarm that, at the ai)pro])riate
season, leaves in order to create a new habitation for itself — if you give
him a title to such bees, enable him to practi(!e a husbaiulry, allow him
to consider as exclusively appropriated to himself what in its own nature
is absolutely incapable of ap])roi)riation, — if the law will step in to the
aid of human intirmity and grant these rights — then you can have this
jn'oduct of honey nniltiplied to an in<letinite extent. Society does it.
It does it for that i)urpose. Our municipal law which 1 have heretofore
shown upon this point is based ujKm 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 diiven for our sujtply of such
birds to pursue the wild flocks with such means as are adapted for that
purpose, the supply procu/able would be extremely snndl; but if man
by art and industry can so far reclaim them as to wont them to a i)ar-
ticular i)lace, take the annual increase from them and i)reserve the stock,
then, without taking from others, we gieatly nuiltiply 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 ai)propriated; 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 ui)on which I have already enlarged is the same.
Pigeons the same. The reindeer of Lapland is another instance of an'
animal naturally Avild, but in which tlii^ law assigns to man a i)roperty
interest and deems them exclusive ])roperty although they wander over
vast regions, and, instead of Ibllowing their owi:ers, 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 initions concurring upon tliese points, and declaring
in regard to every one of these aninuds commonly designated as wild,
that if man can so deal with them as to take their annual increase and
preserve the stock, thc^n, notwithstanding they nniy fly out of his pos-
sessira at will, still, the law will regard them as subjects of exclusive
ax))' priation.
B ti he law docs not stop there. It is interesting to observe that it
will g' to all extremities, wherever there is a social advantage to be
gained, and Avill allow a thing to be the subject of property and to be
regarded as the siibject of exclusive appropriation, although it is abso-
lutely intangible. Take patents for useful inventions, products of the
mind, and, originally, not the subjects of pro])erty at all. As society
advances, as civilization develops, as the need of these products of the
k
wpoii the
i>iils with
I eiideav-
l. iioth-
tnni to a
)(»os their
— i\ most
Iriven for
est, their
es Won hi
h bees as
lit him to
pro])riate
■you give
^\\^}\v him
Yii nature
1 in to the
have this
y does it.
iieretotbre
jj of these
mt it i)re-
ly of such
d for that
>ut if man
1 to a i)ar-
the stock,
luct which
e occasion
say that
<loes so.
)aniinft' in
uickly as
le same.
nee of an'
l)roi)erty
ider over
ieve the
municipal
nuiiicipal
declaring-
as wild,
reaseand
:' his ])0S-
exclusive
ve that it
age to be
\nd to be
t is abso
its of the
s society
tsof 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 tlieiM all the benetits of a property interest; and it does so. We
have had for a very long series of years a pro])erty awarded in respeiJt
to inventions in the useful arts. The principle of a monoixdy, odious
in general, is applied here; and society does not, or rather will not stop
there. Tliat 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
])roducts of the mind. Literary works, the contents of books of every
des(nii)tion, were still not the subject of property. They could be
a])i>roi)riated the w^oj-ld over, by whomsoever pleased to approjuiato
then!, and withcmt giving any ground of complaint to the author; but
all of us understand how gradtniUy and by degrees that has been con-
sidered to be a wrong and not in accordance with the i)rinciples of
natural law, not in accordance with the principles of justice: and so,
after a while, the rights of authors in their intellectual juoducts were
secured to them by copyright laws which are enacted in every («vilized
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 is impatiently awaited and will probably, ere long, be enacted.
8uch. then, Mr. President, is the development of the institution of
property. It is the development of the concejition oi oinicrship 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, r^ars 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 respect to animals which I
conceive to be established by this reasoning? It is this : That wherever
an animal, although commonly designated as wild, voluntarily subjects
itself to human i)ower 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 tlie 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 eveiy ground and every rea-
son wliich supports the award of proi)erty any where and to any extent.
ap])lies to that case, and makes the animal the subject of property.
It onlyremains to ai)])ly that conclusion to the particular animal about
which our controversy is coiu;erned, namely, seals. I need not, of course,
recapitulate again the facts. They are all fresh in your recoUeirtion.
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 superttuous annual increase
without destroying the stock; and that is the way and the only way in
wiiich the human race under civilized conditions can continue to enjoy
the benefits of that blessing of Providence. Unless an award of prop-
f
fi
11
218
ORAL ARGUMKNT OP JAMKS C. CARTER, K8Q.
r
erty is made to the United States in tliat animal, or what is equivalent
to it, the fate of the animal is already sealt'd.
In hmkinn at the merit(nnons features wliicli the ownersof the Pribylof
Islands exhibit, and which constitute their title to this award of prop-
erty, it may at first sij;ht ajjpear tliat they do not have the same sort of
merit Ihat thecultivatorof the land has to the bushel of fjrain that he pro-
duces, or that the manufacturer of an a}>ricultural implement has, which
is iu 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 islunda
is precisely of the same character and goes to the same extent; and
that the present existence of that herd is just as uuich due to a meri-
torious, voluntary, exercise of effort on the jtart of the owners of those
islands as any i»roduct of mechanical industry is due to the workman
who fashions it. This species of proi)erty it will be remembered is
called by Blackstone proi)erty per industriam and very i)roi)erly called
so. Now, whiit induntry is exhibited by the owners of these islands to
entitle them to say that the seals are their ])roperty per iudustricim?
They remove a population of hundreds of peo})le at Rieat ex])ense to
those islands, feed them, keep them there to ])rote<'t these aniruals and
their breediiij? ]>laces against all enemies, and nniintain at prodigious
expense a marine guard along the coast for the same purpose. Unless
that vvere done, marauders would swoop down upon thosH islands and
destroy them at once. In the next place they do not kill the seals
indiscriminately. They i)ractice abstinence, self-denial. They might
kill every aninnd as it arrives and put its skin on the nnirkct at once
and get the full benefit of it. That is the temptation always to man,
to take the utmost that he can, and to take it at once for present enjoy-
ment. Jiut the owners of the l'ril)ylof Islands practice a self denial.
They forego present enjoyment. They forbid themselves that enjoyment
and they do it in the hope of obtaining a fpture and a larger good.
They practice art and self-denial and confine their drafts to the super-
fluous males.
1 wish to dwell a moment upon the merits of that particular fesiture of
self-denial. I have given in the printed argument a multitude of cita-
tions which illustrate the merit of this (juality ot'ahntiueneeas a founda-
tion for property. All political economists, lor instance, in treating of
the question of inteiest, 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 cai)ital1f 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, lie 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 upcm 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 purj^ose of sustaining jiroductive industry,
productive industry would be impossible.
Mr. Senior, in his Political Economy — he is an author of recognized
authority — says (1 read on page 93 of our printed Argument from the
note) :
But although human labour nnd the ageucy of nnture, iudepeudcntly of that of
m.'in, are the primary productive powers, they require tlie coucurreuce of a third ))ro-
ductivo j)rinciple to givy tlioui (.•ouii)leto etlicieucy. 'I'ho most laborious ]io]>u1ation
iuhabitiufj; the uiost fertile territory, if tlu^y <l«!Voted all their lal)our to thejjroduetion
of inunediate results aud consumed its produce as it arose, would soon tind their
utmost exertions insuflicieut to produce even the mere necessaries of existence.
pro-
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Itheir
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
219
To tlio third principle or instrumont of prrdnttioii, witliout wliich tho two otliors
an) iiKitlicient wo NJiall give tho iiiuiie of abulincmr, a toriii liy wliuli \vt» tx]ii( hs tlio
conduct of a perHuu who either abstains from tlio un]>ro<liiclivi> iiso of what he ciin
command, or designedly prefers the production of remote to that of iiiinuMliuto results.
After defining capital as "an article of wealtli, the result of lumiaii
exertion emph)yed iu the prodnction or distribution of wealth'', he goes
on to say :
It is evident thatrapital tlms defined is not a simple prodnetive instrument.
It is in most <'ases the result of all the three iirddiietivt^ insti'iiineiits eonihincil.
Some natural ajjent must have all'orded tho nuitorial; some delay olc^n.joyuieiit must
in j^oueral have reserved it from unproiluctive use and soiru- lalxir unist in ju;('iicial
have been em))luyed to prepare and jtrcservo it. Jli/ the word ohxthiviirv wc iriuli lo
expre/is (hat aijeiit, distinct from labour and the a<jenv)i 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 disjjosition to forego immedi-
ate enjoyment for the purpose of accomi)lishing a future good you find a
prime element of civilization, and it is that which society encourages,
and worthily encourajres. I have no time to read furtlier from tiiese
citations upon the merit of abstinence; but 1 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. Thev
devote the islands entirely to their service. They cherisli them while
they are there. They protect them against all enemies. They careftdiy
encourage, so far as they can, all the ofihies 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 a])ply it to the
purposes of mankind; and, without the exerciise of those (lualities, as is
perfectly plain, that herd would have been swei>t fiom existence hall' a
century ago, and the Pribylof Islands wouhl have been in the same
condition in respect to seals as the Falkland Islands, or the MasaCuera
Islands, and other localities, on:;e 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 ])rin-
ciple upon which the law of property rests which does not defend it,
and there is no rule of the munif^pal law itself, so iar as that law
speaks, which does not support it. They defend it com])letely and
absolutely; and when we step beyond the Ixmndaries of mu!iici])al law
to the moral law, the law of nature, that law wliich is the foundation of
international law, it also speaks with a concurring voice; and in what-
ever direction we prosecute our incjuiries we find uniform sui)|)ort for
the same doctrine. All the rules and the whole spirit of inunicii)al
and international law concur and contribute to this conclusion that
the property of the United States in that seal herd is comi)lete and abso-
lute, not only while it is upon the islands, but wherever it wanders, and
is protected by the safeguards which proi)erty carries rwith it wl.>ere-
ever it has a right to go.
If there were anything which might be urged against this conclusion,
we might be disposed to hesitate. But what is there that can be urged
against it. What right is there that can be set up against it? If there
were anybody who could set up a right against this conclusion, a dif-
ferent case would be made. If any man or set of men, t)r any nation,
could say: " This conclusion of yours, plausible enough in itself, delen-
sible enough in itself, nevertheless comes into collision with a right of
if:
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220
ORAL AUGUMENT OF JAMES C. CARTEK, ESQ.
I'^t
ours, defensible npoii like fjrounds, that is, moral pfroiinds." If that
could be set up, it would raise a doubt. JJut what is theief What
rif/ht is there in these ])elaj;ic sealers — for they are all we have to «leal
with — to contend itjjainst this coiiclusicni ? As near as I can ascertain
it is asserted to be a right to pursue the auiinal because it is a free
swimmiufi animal, in the first place, and because, in the next place,
there is no |K)t(?c»* on the sea to prevent it. That does not su^jji'st n
principle of right at all. How can it be said that there is a right to
pursue an animal because he swims freeh/ in the sea? What ground is
that upon which to atteuii)t to establish a riffht, I should like to know.
Why should one be i)erinitted to destroy a useful lace of animals, a
blessing of mankind, because they ha])])en to move freely in the sea?
I cannot conceive that that suggests even the shadow of a right. The
other gnmnd asserted as a defense for pelagic sealing, namely, that
however perfect the property right of the United States may be, they
have no power to interfere with pelagic sealers on the high seas, is
wholly untenable. It seems to .amount to the solecism that there may
be a riffht to do a wrong upon the sea!
There is no more right to do a icrong upon the sea than there is upon
the land. What is this right to carry on pelagic sealiiigt What is
this right to take these free swimming animals in the sea, n)«>sily
females heavy with young, or suckling their i)ui)S? What kind of a
right is that? We have seen that it necessarily involves the destruc-
tion of the animal. J low can you connect the noti(m of a right with
that? It is a right to sweep from the face of the earth a useful race of
animals, and to deprive mankind of the benefit they afford. What sort
of an act is that, to destroy a useful race of animals? It is a crime} is it
not? How else can it by any possibility be correctly described? It is
a crime against nature. It is a defiance of natural law; and if it were
committed within the boundaries of any civilized and Christian state,
would be punished as a crime by municipal law. It has no character-
istic, and no quality, exce]>t those which mark a crime. Wliat good
does it accom])lish? Does it give to mankind a single seal which can-
not be taken in a ciieaper, and a better way? I have already shown
that the entire product of this animal can be taken upon the islands by
a less expensive method, and in a way such as to preserve the quality
of the skins in a better manner. It does no good in any particular to
mankind. It is possible that seals may be attbrded 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 thousard 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 numbei-' 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 occupation will be gone in a .few years. Nature has so
ordered it that any i)ursuit or occupation like this which consists simply
in destioyiug one of the blessings of Providence, does no good, and
ORAL ARGUMENT OP JAMES C. CAUTKR, ESQ.
221
IS
notliiiip; but evil, in any direction. We say we, thftUnitrd States, can
talto tlie entire iirodnct of this animal, fninisliin}; \tU, the eonnnerce of
the world in the least expensive and in the best manner. Why do yon
not permit ns to do it? Why break up this employment? There
seems to be no reason for it. Then apjain, as I liave already said in an
earlier part of my ai'jiun)ent, one of the limitations to which property is
subject, and especially projierty owned by nations, is a trust for tlie
benefit of mnnkind. Those who have the custody of it and the manage-
ment of it have a duii/ in respect to it. Indeed the whoh> subjec^t of
rifilits sliouhl be repirded as-one dependent upon dvtien, ri}>hts s|)rin};-
in{? out of duties, rather than duties out of rifjlits. It is the duty of
the United States to cultivate that bounty of nature, the po.ss«>ssion of
which is thus assigned to them, and to nuike it productive for the pur-
poses of the world. That is their duty. Why should they not be i)er-
nutted to perform it? Can a reason be assigned why they shall not be
])eiinitted to perform that duty. They can not perform that duty, if
the animal is destroyed.
Has the United States even the rifiht to destroy that senll It has
the poirer. Has it the ri(jhtf Has it tlie right to go upcm those islands
and dnb every seal to death and thus deprive the world of the ben«^fit
of them? Certainly not. Have these pelagic sealers any better right
to do that than the United States have? I have no doubt that if the
United States should wilfully say: "We will destroy that property.
Although having the ability to preserve it, we will destroy it" — «nd 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 aftlict the
human race, and the possession of which was necessury in order to
enable the human race to withstand such disease — the world would
have a right to interfere, take ])08session 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. Tlie United States
has a duty. It is to cultivate that advantage wliich in the great parti-
tion among nations of the blessings of the earth lias 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 lenx than a riijht, if
there were some inconvenience to which mankind would be subjected,
if ])elngic sealing were prohibited and an exclusive i»roperty 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
]iart of Great Britain of an inconvenience in this particular. It is said
that it is building up a monopoly for the United Stntes, enabling them
to gain a mono])oly in the sealskins and thereby aciiuire a great profit.
Well, I admit that it would be a monopoly. Tliere is always a monop-
oly when one particular nation, or particular men, own an entire source
of supply. It is not an absolute 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
l)articular nation it must necessarily have a monopoly. That is una-
voidable. But it is a monopoly to the United States, of course, only
ii
^if
■iii
I' — ^^=
222
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
bettiuise tlio IJiiitpd States Iiiii>|kmih to have tlioHc ])arti<'u1iu' islaiulH.
Tlie poHSfssion ot'llit'iii, the Moveirifiiity over them must h«i awarded to
Nome nation, and titeretore a nionopoly is in a certain sense necessary,
liiit is it uu injurious monoitoly, is it an objectionable monopoly! Not
at all.
Senator MoKOAN. The islands were bought ehielly on that account,
were tliey not?
Mr. Cauteu. 1 do not know that they were. 1 hardly tliiuk they
were.
Senator Morgan. What else was therot
Mr. Carter. There was not mu<!h else except territory. It is some-
times said that they were boufj:ht on that account, and there are son)e
evidences tliat I have read tendiiiij to show that that was one of the main
considerations; but wliether that was the real motive or not I cannot
say. 1 do not resort to that as furnishiii}; the slij>;litest strenj^th to my
aruument. It is Just as powerful without it. 1 am speaking as to
wlietlier it is a monopoly or not. VVlien does a monopoly became injuri-
ous to man '? It is only when it is an artifichd monopidy. If there is a
natural monopoly in a particular ]>roduct 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. Sonmtimes there is a monopoly in a particular region of the
W()rld of a particular article, but the supply is yet so abundant that
if the whole product of that parti<;ular region were thrown upon the
maiket the price of it would be extremely low, and i>ay but a small
prolit 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 liol
lan<l. If all the pei)])er and other 8i)ices produced upon those islands
were thrown upon the nuirkets of the world, they would be glutted.
The world would get them at a very trilling 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 nuirket, for
that would answer no pur])ose; but they nnule an artijwial scarcity by
destroying half the cro]), and the W(uid needing more than half, they
were enabled to exact very high prices and to make a great prolit.
That is the only way in which a monopoly of a natural production can
be made use of unfairly and disadvantageously to umnkind, and be
made the means of exacting an extortionate price. You must artiji-
eidllif lin\it the supply. But not only has that never been done here, but
it never can be done. I say it never can be done, because no profit can
ever be found in it. There is a demand for every vseal ski a ; hat can be
l)roduced, and a i)rolitable demand; and the whole !!'ui))>iy is thrown
ujton the narket. There is not one withheld. The v. u.Ul 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-
IH'tition among those who want them. If anybody is recpiired to juiy a
large price for them, it is because somebody else is ready to ]>ay a large
l)rice. 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 Islandsunder 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 jHoflts of the lessees besides, all of which must be fairly
regarded as the profits of the industry, there is of course a very large
profit upon every skin that is sold; that is to say, the price of the skins
1
ORAL AUGUMKNT OF JAMHS C. CAUTKU, ESQ.
223
may pay t\v(t or tliive times ovor lor all the lalxu- and all the exppiiHe
which tht^ jiaflioiiifi' of tlu* ])nHhH't rosts. TIutc is a very lart;e prolit.
That ;;oes to the I'liited .States, and to these lessees — is »listrilmte(l
anions them, it is e\a<;ted. of course, from the (;iti/eiiH of the Llnited
States tiie same as it is ti'oiii the rest of the world; Wiit it ^oes to the
United States and these lessees. What olnjection is there to that? Is
that aiiytidn^' moretiian a fair remnneration from this bounty of Prov
idenee which is placetl in tiieir custody and in their (control, and for
tlu'ir labor, their elfoits, and thcur exertions in iireservinf; it and fui-
nishiny it for the '"se of manUind? Of courses not. It is perfectly fair.
It may be tlio soiuve of a protit. So there aie a thousand things in
commerce hich are the s<uirces of prollt to parti<'ular luitions wliich
have nii' al advantages over other nations in producing' them. The
advant e is not dilferent in its nature in this j-ase.
In >« »rt it comes to tliis: That it is only by the exercise of the care,
in«br ly and selfdenial on the part of the (Jovernnient of the United
Sti' s that the world can have tliis blessinjy. The whole of it is thrown
ri^ .Ml the world and the juice is determined solely by the buyers and
by what they see lit to {>ive. If the owners of the islands should see
lit to withhold from the market at any ])articular tim(> any considerable
number of these skins, what would they «lo with them? liow would
they {fain by that procedure at all? The next year, or the next — some
time after that — they woidd be o' lifted to throw the i)art withheld upon
the market and that would depress the nuirket so that the loss they
would iiMiir in that way would tar exceed any gain that there was any
l)roudse of. No, there never can be any temptation for keepinj;' any
part of the product, except under very unusual circunistances, such as
a decline in the demand owing to some special circumstance, which
might iiuluce the proprietors of the islands to say: "We think we can
do better with the skins next year than this year." But in general tin y
can reap no unfair advantage from the possession of this natural
monojMdy.
There is an()ther suggestion 1 observe in the Case and Argunu'nt on
the part of (Jieat 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 iind something of a similar nature upon which
to sui)port their alleged right. What have they? 1 have discovered
two things which they put Ibrward or suggest. They recogidze 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 i)ut against that is this; They say ihis seal has two habitats ;
one on these islands, and the other in the xea along the coast of British
Columbia. That is they seek to attach the seals to British territory,
Canadiiin territory, and say that they have a superior right also
grounded upon favorable conditions of locality, etc.
That does not amount to enough to talk about. It is not an advan-
tage which enables them to deal with the seals in any dilferent way.
They still cannot take them in any other way than by this indiscrimi-
nate pursuit which sacritices males and females alike — or females to a
larger extent than males. It does not enable them to ])ractice a hus-
bandry in resjject to the animal, and to give to mankind the benefit of
the increase without destroying the stock; and so it should bedismissed,
even if it were true in fact. But it is not true in fact. It is only a con-
jecture. The seal has no winter habitat. He is on the move all the
time; if he has a h.abitat along the coast of British Columbia, he has
the same habitat along the coast of California and Oregon, which is
,1:
l.ii
i* I
If -M
224
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
territory of the United States, and along a vast extent of this sc tnern
part of Alaskan territory and of the Aleutian Chain. A winter habitat
along the coast of British f^oluiubia, if it were anything but an imagi-
nation, is too .'ight a consideration to form any figure in this discussion.
What is tlie other ground of merit? That is rather more singular, as
it seems to me. They say the seals consume along the shore of British
Colambia a great many tish in the sea. The suggestion is, I suppose,
that if the seals did not consume those fish, the inhabitants of tliose
shores would catch tliem and tliat, tlieiefore, the seals take away those
fish from them ! In other words the intimation is : " We feed these seals
with our fish !" All 1 have to say in reply to that is that the fish which
they consume, these squids, and crustaceans and cods, and what not,
are not the i)roperty of Canada, or of Great Britain. They are the
property of mankind. Mankind feeds these seals. It is from mankind
that they get their sustenance. They take it out of the illimitable stores
of the sea. It is not the property of any nation, but of mankind. I
grant you that the circumstance that mankind feeds these seals with
its fish is a circumstance tending to give mankind an interest in the
product. The seals in a beneficial sense belong to mankind. That is
our position ; and we (jive them to mankind ; and maidcind works out its
true and benelicial title only by employing the agency 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 tlie world if you will
only cultivate it. It is your duty to improve your natural advantages
by taking tlie annual increase, and when you do that, ice get the benefit
of these seals, and we get it in the only wjiy which it can be aflorded 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. Thiire 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; up«m no facts which are in
serious disjjute. 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 agreenieut that for indiiKtrial as well aa for other obvious
reasons it is incuinheiit upon all nations, and i)articularly upon those havinj^
direct commercial interests in fur-seals, to provide for their proper protection and
preservation.
6. Our joint and several investigptions have led ns to certain c<>n"\»8ions, in the
first place, in regard to the facts of seal life, including both the exJMting conditions
and their causes; and in the second place, in regard to such remedies as may bo
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 OP JAMES C. CARTER, ESQ.
225
3, ami
iiicl at
>wiiig:
)l»viou8
haviiif?
ion aud
in the
(litions
may bo
in.
inmlier
that it
ly man.
The President. Is that in accordance with what you have said? I
think you stated that diniiuutiou has beeu taking place since 1881 or
at least since the Alaska purchase, which was in 1807.
Mr. Carter. This report does not state any diminution at successive
periods; nor does it state the beginning of the diminution.
The President. Your statement I believe is that the draft of one
hundred thousand seals a year would not afl'ect the condition of the
herd ?
Mr. Carter. That is my statement; that is if pelagic sealing were
not carried on.
The President. That draft was observed for several years after ihe
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. Tliat
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 Islands
has taken place; that it has been cumulative in its effect and that it is
the result of excessive killing by man." I take that finding to mean
this: That this herd of seals is at the present time in the course of
extermination, aud 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 tlieir
killing is reytdated; and it follows from that that all unregulated killing
is wrong. It follows, I say, from that that the extermination of the
seals which is in progress is due to unregulated killing. I do not say
now where unregulated. It follows that all unregulated killing is wrong,
because it leads to destruction. We know that there is a mode of regu-
lated killing by which the race can be preserved, and that is by conlin-
ing it to the Prybilof Islands; and we know that sealing upon the high
seas cannot be regulated. All unregulaf'^d sealing is wrong. Sealing
upon tlie high seas is, and must be, unregulntedj because no discrimina-
tion is possible between the stock and hr increase; and, more than
that, the attack of the pelagic seulerb is principnily upon the stock, and
not upon the increase, for wherever a ringle fenrale is killed the stock
is struck directly.
Therefore, standing upon the mere linding of this joint report there
is fact enough upon which all the conclusions of my argument may be
sustained.
There are some technical objectlo'^s that are urged ; gainst the award
of property. It is f^^.:^., you cannot identify these seals; that the seals
found upon the l^i^wof Islands nay perhaps come from the Coiu-
niander Islands. As I have already said, that is founded uponcon jectnro.
in dealing with a large subject like thia the mere possible eircuuistanco
tliat there nnght be a few individuals intermingling is of no consequ'^nce
at all. No judicial Tribunal would take notice of it at all. The great
^'act is obvious, and I think admitted, that the great bulk of the lierd
which goes on the Northwest Coast of America and between the Pri-
bihtf Islands and the state of California has its breeding i>)ace at the
Pribilof Is^aiuls; and every individual if t at some time or other,
visits those islands and submits itself to the power of man there.
, I
1
i
I
ill
B S, FT XII-
-15
226
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Mm'
There is another thing tUat is suggested and that is if a property
right should be allowed in these animals to the United States it might
iiiterlero with, and prevent, the enjoyment by the Indians along the
coast of an immemorial right and jirivilege 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 ]>elagic 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 gjcater or
less extent by going out in their canoes in the sea and sjjearin.ji' these
seals, of that mode of sustaining existence. It might subject tliem to
starvation. Yon nuist support them at least if you do deprive tliem ot
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 insigniticant attack upon the herd. It is a pursuit which is ]»rop-
erly classilied among the natural sources of danger to the herd just as
]nuch as the killer whale; and I have at an early ])oint in my argument
so considered it. It is insignificant in amount. It does not atiect the
size of the herd; it does not aft'ect any of the conditions which I have
considered as necessary for the preservation of the existence of the
herd. It is, therefore, a iiursuit which might be tolerated witliout
danger to the herd.
Tlierefore, it is quite possible that the United States should have a
l)ro])crty interest in the seals, subject, however, to the right of the
Indians to jmrsue them in the manner in which they were accustomed
to do in former times; that is to say, for their own ])urposes, and in
Ciuioi's from the shore. That is a barbaric ])ursuit. That is an instance
with which the Oovernmentof the United States is quite familiar, of tiie
survival of barbaric conditions down into civilized life. It is a condi-
tion with .vhich 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 otlier ineans
of su])port they should be allowed to continue their natural pmsnits 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
ccmditioiis. It is a barbaric pursuit, and being a barbaric pursuit, does
not endanger the existence of the herd, because it is not carried toaufli-
;"ient extent. There is not a large population dei)endent upon it; but
jt will not do, undercover of that pursuit, to allow civilization to invade
in that manner the herds of fur-seal. It will not do to employ these
Indians and man large vessels with them upon the high seas there to
attack these seals for the purpose of furnishing them to commerce.
That is not a deiiling of barbaric nations with seals.
That is a dealing of civilized nations with thesesils. Barbaric nations
have rights which civilized nations have not, in certain i)articulars. As
1 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 it is small; but when civilization makes its
attacik upon them, its methods are perfectly destructive, unless those
.apjdiam'es are made use of which civilization supplies, and by whw-h
that destruction nuiy be avoided. This is the precise function which
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
227
stance
of the
coiicU-
fectly
1)6. So
ineiins
nits so
would
tliein of
avbaiic
it, does
tosulVi-
it; but
invade
1 hese
lieve to
unerce.
nations
rs. As
tack by
,<>ener-
likes its
Is those
which
which
the institution of property performs. Tiierefore there is no difTiculty
in awarding- to tlie rjnited States a rij^ht of property subject to the
rijiht of the Indians to capture in the manner in wliich they were for-
merly accustomed to do before the use of vessels for pela>;ic sealing,
but not tlie rijiht to go out in pelagic sealing vessels.
Tlie PiJESiDKNT. Do you not think it is very ditlicult to draw a legal
line of limitation between what an Indian is allowed to do for himstlf,
and what he may be allowed or i)eruiitted to do in the service of an
Euro])ean or civili/ed num ?
Mr. Carter. There are always practical dilliculties connected with
the dealings with barbaric tribes. There are always greater or less dilli-
culties; but there are no insuperable dilliculties connected witii it.
The President. Do you liud there is a substantial legal dillerence
between the two cases.
Mr. Cautku. There is a substantial difference.
The I'KESiuENT. Between the case of an Indian fishing on his own
account and an Indian fishing on the account of a civilized man?
Ml V \RTER. I think there is a very substantial one.
T',*^ "' j.siDENT. A substantial legal difference '?
^ ' " I i'ER. Yes; I think so. When 1 speak of legal, I mean moral
or iiiteriiational grounds. There is no sharj) distinction.
The President, floral and international are two difi'erent fields of
discussion, I think, though they may often join.
J\Ir. Carter. Not so different as may be supjiosed.
The President. They are not contrary.
Mr. Carter. Kot so different as may be sup|)osed. International
hiw 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 dictiites
of the law of nature are the dictates of international law. To say that
they are nu)ral does not distinguish them at all from such as are legal.
We have sharp iliyfiiu'tions, of course, in municipal law between what
is moral and what i;' h\ual, but in inteiiiational law whatever relates to
actual human coiicc-viis, the pro]>erty of nations, and actual affairs,
whatever is di.'atc(! in respect to these by the law of nature, is not
only the mor; ' iii'v bnt the legal law^ also.
There is the br*;;! le.yfc sort of ditferen<!e between the two cases. The
Indian goes out an-' littti ks and kills the seals lor the purpose of sus-
taining himself, mak; •;.. a skin which he is going to wear, and getting
food to eat.
Lord llANNEN. Is it to be confined to merely their sustenance?
Were they not Ine only su]>i)liers of the skins in the first instance?
They bart'j.ed the skins, for there was no other source until the I'ri-
byh)f Islands were discovered. That trading so fre(|uently referred to
was a trading in these, amongst other skins.
iMr. Cartet", Tiuit is true; they were original traders. They were
made use of ;■ -the purposes of cominer<'e. But that was commerce.
Lord Ha> , N, Yes: carried on by the natives.
l\Ir. Cartk!;. [iut it was commerce. They were supplying the com-
merce of the wor;<l. They were not furnishing themselves with cloth-
ing. They were not furnishing themselves with seals for food.
The I'KEsiDiCNT. That you consider was allowed at the time, and
w.)nld not ite allowed now.
Mr. Carter. Before the Eussians discovered these regions, they
'vere inhabited by Indians, and those Indians did i)ur8ue tlie seals iu
!!(■
I
228
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
that way. That is pursuit by barbariiins 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 con>nierce 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 Kussitins dis-
(iovered this country, and traded with these Indians and got these
skins, tiiat was the beginning of an attack by thcAvurld generally upon
this stock of seals. That was the beginning of an attack by civiliza-
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 bv h, 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 ruay create a differ-
ence in right, according to your vie\v !(
Mr. Cautkb. The distinction whiol lean to draw is between a
I)ursuit of these seals for the purpose!^ personal use of the people,
such as they were in the habit of making oefore tliey were discovered
by civilized man, aiul a pursuit of them for the purpose of supplying
through commerce, the demands of the world. That is the distinction.
Tlie 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 ami conditions; but when it is increased, then it
does threaten the stock. What nuist you do then? You nuist adojit
those measures which are necessary to preserve the stock. And what
are the measures which society always er.iploys 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 iew hundred
Indians in existence who may liave some needs in reference to them ?
Ko; 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 uot. Civilization is not
to subordinate itself to barbarism.
The PuKSiDENT. 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 tliose that are employed on the Priby-
lof Islamls 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.
Tlie 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 tlie 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 destru(!tive, then it is not to be allowed. They
have no right to «lestroy this race of animals.
The President. En order to give you satisfaction, the question would
be to know what limits the pelagic sealing may be carried to without
being destructive?
Mr. (JARTER. Yes; that is practically the question; if you can say
that pelagic sealing can be carried on without being destructive.
)n by
lattei'.
sell-
Imeas-
They
rould
[thout
in say
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
229
The President. By Indians, at any rate?
Mr. Cauteu. By Indians in tlieir canoes, in the way in which it was
oiifiinally carried on. Tliat does not threaten the existence ot the herd.
The Tresident. That is a natural limitation.
Mr. Carter. It is possible to do this. Jt 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
8tates, proceed upon the assumption that the blessings of Providence
are to be preserved and made continuidly 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 correcit
me: that the United States Government, being the owner of these seals,
has a right to make an indulgence, an exception, in favor of those Indian
tribes because of their dependent condition, so long as they conduct
that sealing in accordance with their original custonjs?
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 jieace 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 i)ower
chooses to do in tlieir general public ])olicies, giving them in the United
States, and doubtless in Camula, when they are tried in the courts, the
privileges and benefits of the provisions of the constitution, wliicli
operate in favor of personal rights of liberty, property, etc; but noitlier
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 olf from hunting on the plains the wild
buflalo, 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(iovernment,
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
:|
[\
!
V
' i
t'
^1.
, i
1
■": \|
a' I
i j
:iir
Hi
'. \'. 1*
it
'4
' f ::
m
230
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
w
and Riipplios; and for the sake ol tliose, and for the support, tlioy sub-
mit tlu'uisclvt'.s to tlie vcsulations nndor the Govcvninent. But on tlie
Pacific coast tlie Jndiais jirc practically as free as the whites.
Senator M(ji?gan. 1 s])eak, Mr. President, if you will allow me to
explain my statcniciits, of the power exercised. If it is exercised in a
single instance by Canada or the United States, of course the whole
])ower 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 goveriiment or foreign power. The Indians
are entirely within the limits and dominion of the respective govern-
ments in America. A treaty that is s])oken 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
1)6 found any where else in the world. Tliat is the universal history ot
the North American continent. In the decisions in the United States,
the radians are called the wards of the nations; and the United States
are their guardian.
Sir .loiiN TiioMrsoN. I might say, in addition to what Mv. Tapper
1ms said, that the only penalty for roaming contrary to the provisions
of the treaty is the withlndding 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 INIr. (barter's ])osition,
perhaps I ought to add tin's: that in establishing close seasons for lish-
ing and hunting, the Indian is included as well as thcAvliite; but an
exce])tion is made in favor of such as may take by fishing and hunting
for his own sustenance.
Mr. OAiri'EK. "^riie survival of barbaric conditions in civilized life is
a perfectly familiar problem, both to Great Britain and the United
States, iu many ]>arts of the world. It presents its difficulties, no
doubt. They are dealt with as they can best be dealt Avitli. It has
been stated, and sometimes Avitli truth, t- at at ti'^es crueltj* has been
shown to the native inhabitants, and that at other times jierhaps too
wv.ch generosity is shown to them. The problem is a difficult one; but
Ji^i difficulty 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
iil)on the l)ulfalo, living upon herds of buftalo that roamed over a
boundless area of ti'rritory; and here was a vast population ])ressing
ill that direction all the time. What are you to do? Are you to
station an army along the boimdary, along the frontier, to ]n'otect
these savage lands from invasion, and say that civilization shall not go
on lieyoiid this itoiiit? Are yon to protect these Indians and thel)ufialo
in their wild condition forever, and say that this part of tlie fruitful
earth shall remain forever a forest and a waste? Is that what you are
to do? Is that the dictate of civilization? No; you cannot do it if you
would. Civilization will jiress fm^ward and will diive out the Indians
in some way or otiier. Tlie 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 ilANNKN. Was there ever any law in the United States for the
preservation of the bison ex(;e]>t in tlie Yellowstone Park?
Mr. CAirrER. No; none that I am aware of. I think not.
Senator ^loudAN. No; there never was any law of that sort except
iu that ])ark.
Mr. Carter. No; none of that kind. The consequence was that the
OUAL ARGUMENT OF JAMES C. CARTER, ESQ.
231
I
United St.itc.s in dealing with that problem did it by treaty; but what
are treaties bcl ween a ixiweifnl nation and these tribes ofludians? They
are not capable ol' giving consent. They do not deserve the name of
treaties. They are called so; but what is the effect of them? Von
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 whitih is
litted to produce prodigious quantities of wheat. That earth must
bo cultivated. The Indians will not do it. If you take it from tiiem,
what do you do? You give them rations. Thfit is what they do in
Canada. That is what they do in the United States. That is what
they do wherever this problem of dealing with barbaric tribes is
treated with generosity and with justice; but the interests of eiviliza-
ti(m and the demands of civilization cannot be made to wait upon the
«lestinies or demands of these few barbarians. That cannot be done;
and when tht 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, bat because they are the employes of men who are
prohibited from doing it, of course you niust prohibit them as well.
The IMjesident. That is their livelihood also?
.Mr. Carter. The livelihood of the Indians. They have a right to
l)ursue their livelihood as long as it is confined to getting the seal for
the purpose of clothing for tlieir bodies or for meat; but whe \ they
want to engage in couunerce and clothe themselves in broad clotii and
fill themselves with rum in addition to their original wants, and for
that purpose to exterminate a race of useful animals, a ditlerent 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 i)rovided
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 Aveather and continuing on the sea for months. Tlicse
vessels follow tliem up, put out their boats wlierever they see a number
sufficient to engage attention, and slaughter them in that way. That
is what threatens the existence of the l^rd. 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 ui)on the seals is this; that it does not create any serious prac-
tical difticulty 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
tlieir means of subsistence, at least without supplying them in turn.
Their history abundantlyrepels any suggestion of that sort. They have
never intlicted 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 f
i
i
1,1 j
f
H
232
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
if:
vlr. Cakteu. There is no sealing by boats on the coast from the
American territory, 1 think; because there are no Indians, 1 think, on
American soil who are given to that pursuit.
Mr. Justice llAiCLAN. When you speak of boats you mean canoes?
The President. Yes; I understand that.
Mr. Carter. I am told there is one tribe of Indians, at least, the
Makah Indians, who are on American territory, who do practice seal-
ing in boats to a greater or less extent. There may be others.
Let me saj"^ in concluding my argument upon this question of prop
crty — and I am about to conclude it now, that i have endeavored to
put the case of the Government of the United States upon no seltish
reasons or grounds, but upon grounds which interest alike the whole
world. I have not put this property in sejils 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
ui)on 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 G, do you?
Mr. Carter. It is property in the sense that they are entitled to the
exclusive custody and management of it and to prevent any interfer-
ence with it from any quarter and to the direct profits of it; but when
I speak of the beneficial enjoyment, I mean the interest of the whole
world.
The President. So according to your view, in this number five,
"lias 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 co ties in at another time, 1 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 difierent 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.
Assuming the right of property in this herd to be established in the
United States, the next question is what right she has of defending and
protecting herself in the enjoyment of that property. But, as I am to
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
233
II
pur-
utbe
and
im to
deal shortly witli ivnother aspect of the question of property, namely,
with the inthistry that is estahlished on the islands, irrespective of any
right of jtroperty in the seals themselves, I shall postpone a discussion
of the rights of protection and defence wliich a property interest wouhl
give until I have concluded what I have to say upon that aspect of the
question which relates to the industry carried on upon the islands.
[Tiie Tribunal thereupon took a recess.]
The Tribunal resumed at 2,10 p. ni.]
Mr. Carter. There is one extract, from the Report of the British
Commissioners which I intended to read in the course of my arginnent,
showing, that a husbamlry is possible with the seals, and that it is car-
ried on on the I'ribilof Islands. It is found on jiage loi). It is a news-
paper extract (reading):
Tho American fur-seal hart a narrow escape of shariiig the fate of its southern
kiiulrcrt. In a paper dealing with this subject, a writer gives the followiug arcouut;
"Early in tliis century tho seals were almost extermiuutort in many of the islaii<ls
in the North Pacific, and were there as ruthlessly slaugiitered as they were in tho
Bnss Straits and tlic New Zealand coast. The extermination was, as it were, com-
nicnced, had not Russia first, and the United States afterwards leased the exclusive
right of kill ng seals on the I'ribylof Islands — a famous sealing place — to a single
Comjiany, by which means the seals were saved, as the Compauj' had an interest in
l\eei)ing up the Bii]>ply of furs."
This single ex[)eriment, the writer states, has proved conclusively that fur-senls
can be farmed as easily as sheep, and that senling should not be thrown open with-
out restrictions. Seals are a property the St.ate should jealously guard. On tho two
Pribyloff Islands it is computed tliat 5,000,000 seals resort annually. These islands,
from the value of the fur-seal, were discovered in the year 1786, when tho slaugliter
commenced, and was ])ro.secuted without [t] until the year 1839, when tlie 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. Cauter. The substance of it is a newspaper extract.
Sir Richard Webs ier. It is referred to in the letter on page 58.
Senator Morgan. And is a reply to a circular from the Governor ot
Tasmania.
The President. That is a British official— Mr. Martin— is it not?
Does not the British Government endorse his views ^
Sir Richard Webster. On page 154 you will find that the Briti.sh
Commissioner sent a circular of incjuiry.
The President. But that implies no approbation of the views — it
is merely for the purpose of inquiry?
]\Ir. Carter. It is a i)aper presented by the British Commissioners
as having been received from persons familiar with the subject. (Read-
ing again:)
The destruction was then 8to]iped until 1845, when it was gradually resumrid,
though, instead of the indiscriminate slaughter which had before been peiinittLd,
• only tho 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.
l^^r. Carter. Tlie general tendency of it is in accordance with our
evi(]en(!0, 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 tho right of sealing in those islands woro restricted about
tlie year IHBO to 5l),n00 seal-skins annually. From 1821 to 1839, 758,:)02 luf-seals were
killed, and .372,891 from 1845 tu.l8r)2. From another authority, Mr. Hittel, I find that
when the United States Government took possession of the islaiids in 18(i7 several
American firms took possession, and the wholesale slaughter of seals began afrrsh.
hri
.^9«i
234
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
i
II.
lu 1868 not lean than 200,(K)0 Meals wore killed, and for 18ti!) it is nnitl tlw^ nninlior waa
not far below 300,000. The United States Government, loiiriiij; their tot.i! extinction
leased the sole rijjht of seal-Hshin'' on these islands to one lirni, restricting tiie
allowed number to 100,000, From what he had been able to lay before the Fisheries
Koard, no time should be lost in at once taking steps to protect the soul tisheries in
Uiiss Straits. Wherever proper restrictitm has been hitroducetl a most valuable
industry has been started in connection with the seal industry, and, instea<l of tho
three years, as has been proposed by this Hoard, he stronjjly reeominended live years
for the close season, and if at that time the seals have increased the (iovernment
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 tlie indus-
try carried on by it on tlie Pribilof Islands irres])ective of the ques-
tion whether they have property in the seals or not. Su])p()siiig, 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 cari'ied 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 estiib-
lished originally by Eussia, and that she employed care and labor and
devoted expense to its establishment, carrying thither a large number
of native Aleutians from the Aleutian Islands, for the purpose of
guarding the seals and carrying on the business of selecting the super-
fluous increase in order to supply the market; that no interference was
made with Eussia in the enjoyment of that industry during the entire
l)eriod 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 beneliciiil
results in that particular, we have only to compare the condition of the
Pribilof Islands with that of the islands in the Southern Ocean — the
Falkland Islands, and others where the race has been entirely
destroyed. And I might add that it is quite possible that with the
prohibition of pelagic sealing, and the establishment of similar rules
and regulations over the sealing grounds of the Southern Seas for the
perservation of the animals, those islands might be stocked anew, aiitt
similar advantages might be enjoyed in many parts of the world to
those now produced by the industry on the Pribilof Islands. Tiiis
result might be brought about and the benefit to mankind greatly
increased.
The President. Do you mean that that should be a matter foi*
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, T.Sq.
235
the
rules
)r the
siiut
hi to
This
eatly
The Prksidknt. It might be Ji result of the pivseiil Ailtitrafion.
Mr. Carter. It iiii/^ht be, and that is one (t'thei'<>iisi<lerati(»ns wliich
Bhould engage the attention of the Tribunal. It is not only a (|U(>stion
of 1 reserving the seals which now exist, but of making the natuial
resources of the earth available for all their i)()ssibilities. N(»w tliat
industry establislied and carried on by Itussia formerly, and now carried
on by the United States is unquestioiuibly a full and ju^rfect rif/lit. That
is not disputed. It is a lawful occupation, it interferes witii t lie rights
of no one else. It is useful to the ])er8on8 who carry it on, and usel'ul
to the whole world, aiul it has a further utility in the sense that it i>re-
serves these races of animals and applies the benefit to manl<in<l, while
at the same time, preserving the stock. In its several aspects, there-
fore, it is a full and perfect right; and that right is not disputed. Wliat
is asserted against it, is, that the United States have no riglit to pre-
vent other industries which come in conflict witli it. It is said on the
part of (heat Britain: "We also have an industry in these seals and
our industry is a right just as much as yours is a right." Now of cnurse
the validity of that argument rests upon the question whether it is a
right; we are thus again brought face to face with the (|uestion whether
this practice is a right. If it is a wrong, then of cours(^ there is no
defence for it. Upon what ground can it be defended as a right ? AVhat
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 Hmndation upon which that pelagic sealing can be sustained. Tin;
only grounds I hear mentioned are two — lirst, that the seal is a free
swimming animal; and, secondly, that the seas are free, and there is
no munici])al i>ower which can restrain the pursuit which is tlnis carrie<l
on on the high seas. That assertion, therefore, rests upon the assump-
tion that there is a right to destroy nuy free-swimming animal in the
sea. However great a blessing, however useful that animal may be, it
is said by the pelagic sealers "we have a right to destroy it, a right to
pursue it, although that pursuit involves its destruction." Uut they
have no right to destroy a free-swimming animal or any other animal,
either by pursuit on the sej., 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 indiserimiiiate.
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 })ursuit of tliose 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. Uut
the seal is an animal which can be taken and applied to tlie uses of
mankind without diminishing the stock, and conse(iuently you have no
I'ight 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 If
in
I'fT
I 1 f
ij
236
DUAL ARGUMENT OF JAMES C. CARTER, ESQ.
Mr. Cauti.u. Yes; where selection is possible and necessary as in
the case of the seal.
The I'liKSiDKNT. It is one of the bases of the rij;lit of jnopcrty.
Mr. (Jarteu. With th<3 seal indiscriminate slauHliter is destructive,
and therclore nut right, provided there is a mode not involving; destruc-
tion by which you can select the victims for slau^'hter. If there are
some men who, in c()nsequen(!e of the natural advantages they enjoy,
have sn<'l' a control over the animal that they can make the selection,
that constitutes their right of proi)erty. Thus, the United States have
indisj)utably the right of projjcrty in lespect of the seals of the I'ribilof
Islands, as long as they are on the islands. But I sjjeak also of their
right of property in them on the high seas outside their jurisdii'tion.
Senator Moikjan. 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?
]\Ir. Carter. Thjit depends upon this consideration — the fact that
they have a control and possession of them on the land, ami that that
control and ])ossession gives them the power of taking the entire beiie-
lit of the animal for the use of mankin»i without diminishing the stock
is a ground why they should be awarded a property in the animal, not
only while he is on laml, but when he is out at sea.
Senator MoRfi AN. My proposition is that those conditions to which
you refer do establish the right of property; but does that right of
l)ro])erty follow the migration?
Mr. Carter. After you have once established your right of i)roi)erty
on the land, the considerations which I have adverted to, establish it
on the high seas. 1 assert the doctrine of a qualified property as in the
case of animals con)moidy 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
l)ro[)erty subsists, and it subsists as well wlien the animals are out of
the ]»ossession of ti:e owner, as when they are in his possession.
Senator Moiui AN. The ditticulty is in the meaning of a wor<l. I think
that when ii i)roperty 1 as been acquired in an animal or any other thing
that is capable of enjcyment, in the sense in which you have i)resented
it, the property may )/e lost when it is out of your possession. But
while it is in your possession your property is qnalilied.
Mr. Carter. Oh yes; it may be lost by abiindoning its home, but
while the instinct of return rennuns, the property subsist;?. Now, in
reference to the seal, it always retains the instinct to retain, and the
proi»erty 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 1 say we are met face to face with the question wherher this
l)elagic sealing is a rif/ht or not. There cannot be a right to destroy
any free-swimming animal, if there is another way by which lie can
be taken without destruction. I next have to say that whai". consti-
tutes one clement 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 ])erforniing a duty to mankind. They are cultivating and
imi)roving an advaiitiige which, in the division of the blessings of the
earth, h;is (alien to them, lliis any naticm the power of taking the
inciciise and yet preserving this race of seals for the use of all man-
kind by pelaffic sealing, and is there any corresjjonding duty on the
part of any nation to prosecute i)elagic sealing? None whatever j it
is mere destruction.
ORAL ARGUMENT OF JAMES C. CARTKR, ESQ.
237
Now tlio other groninl on which Gn'at l^ritaiii sot'l<s to niaintnin this
l)iiU'ti(t' is tliat the seas •dmj'ree. Tliey say : " Voii cannot iiiterlere on
tlie hiyli seas witli us and our industry, wliich is a ri<,diti'ul one. That,
does not foUow. Whether a thinj? is ri^ht or not (iei»ends upon its
moral (pialities and, not upon the ability to punish it. A ;jreat nniny
wronj? things niay bo <h>ne on the sea, because tliere is no municipal
law to ]»re\ent them, but that does not jjive any semblance of rij-lit to
such ])roceedinjis. The distinction b(^tween right and wiong is not
abolished on the sea; it goes all over the world, and tliere is no part of
the sea which is not subject to thodonunion of law. Theretbre, to say
that " (he seas are free ibr this pratti<!0 bei^anse you cannot i)unisii 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 pehigio
sealing is wrong, we do not insist that the United States have, for tliat
reason alone, a right to repress it. The United States do not assume
the oilice of redressing wrongs all over the world; but what they do
say is that where their right of property in an inflnstry is injured, by
an act on the high seas which is, in itsti/] a wrcnig, then they have a
right to interfere and defeiul themselves against that wrong. Now
there are two foundations upon which the riglit to this industry carried
on at the Pribilof Islands is maintained by the United States, and they
have jpiite a close resendjlance to each other and yet are in certain par-
ticulars distinct. The first is that that industry is made possible in
consequence of a particuhir natural advantage which attaches to tlio
soil of the United States at this si)ot, and that that advantagi consists
ii> the fact that the race of seals regularly resort thither and spend a
f- iderable portion of their life there, enabling man to carry on a
uidry in them. This right is therefore Ibunded on a natural
..c. . aiitage peculiar to the spot, aiul is as much a right of the nati(»n 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. 1 call it a nafional industry for this reason; it is an industry
which requires the establishment of rule? and regulations for its con-
duct, which rules and regulations cannot be carried into etl'ect except
by the authority of a nation.
Senator Morgan. I^o you apply that doctrine to all the fur fisheries
in the world?
Mr. Carter. Well, I am not making that point now, but only as to
the Pribilof Islands. In similar conditions I think it would apply.
Seinitor Morgan. You mean that the seals cannot be preserved
without national authority.
Mr. Caktek. That is the very point; I call it a national industry
because it requires national protection.
The PitKSiDENT. You would make a difference between domesticated
seals an<l wild seals, as between wild bees and domesticated bees? You
would say that the Pribilof Island seals are domesticated seals?
3Ir. Carter. Well, 1 have considered the question of property in the
seals themselves and have done with it. I am now upon tiie question
of the right of the United States to carry on this industry eve;* 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 in a
])opulatiou to engage in that industry, so that the destruction of that
industry would deju-ive them of their means of subsisten(;e, I maintain
that the citizens of another nation cannot, for their own temporary
ij-
238
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
m
beiielit, coino in and break up tliat inclustrv. Let me illnstrate that.
1 njay assiiiiie tliat tliere are races of fl>sh\'S which regularly visit a
shore. Tiioy may not be the property of the owners of that shore,
they juay not be the ju-operty of the nation which holds dominion Ov^er
that shore; neveitheless, it is possible by making rules and regulations
to create an industry in them; aiul when that is done there is a thing,
a creation, whicli that nation has a right to maintain against the attacks
of the jx'ople of other nations.
The I'UESiuENT. That would create a right of protection over the
species.
Mr. Carter. That is w -at I am arguing; it would give a right of
protection; the right of jn jtection stands upon the industry which is
created. Writers ui)on the law of jiroperty tell us that projjerty has
many lorms. ISometimes 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 maybe a light to go upon the land of another and do
something there; and sometimes it is what jurists calljw/'a merm J'liciil-
tiitifi; but it is a right, and in tiie natuic of ])roi)erty also. Now I wish
to give some illustrations which will show what 1 mean by the right to
carry on this industry. These Pribilof Islands are one instance, and
there a'c others. In our Case are given many instances, where peojile
having a right of legislation have ])assed laws for the ]nirpose of pro-
tect ing (ish«!ries and other industries against invasion. There are many
diii'erent instances of that sort. There are many instances where
Great 'Britain has passed laws of that character. 1 proceed upon the
assunipti(»n that lawful and uscml industries can be created and lu'e-
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 (juestion, but the policy is in .all instances
the same. Now I have instanced the I'ribilof Islands. Another
^nsJ^ance is the tisheries on the banks of Newftmndland. Great Britain
asserted at an early peiiod a right to the tisheries tiiere, because she
h.nl established an industry which had been maintained by her sub-
jects, who resorted thither for the i)urpose of catching tish. When the
United States gained tiieir independence, they claimed to share in these
tisheries. Tiieysaid: ''We went there and established that fishery;
and now, having gained our indei)endence "we have a right to sh'iie in
the benelits to be derived from it". That right was denied by Great
Britain and the attempt to assert it was unsucc-essful; but it was
admitted by both ])arties that it was a national industry, although the
United States contended that they had a right to i)articipate in it.
And tliere are numerous other cases where laws have been passed by
Great Britain lor the protection of her fisheries.
The IM{ES1I)i:nt. Are these rights asserted now?
31 r. Caiitek. Well, I do not think they are praciically asserted on
the banks of ><ewfoundland now as against other natiims. But they
were oiigliially, and they tend to illustrate my argument. They illus-
trate the ilea. The correspondeiu'e is printed in our Argument.
The IViMisiDEN'i'. Yes, but the exclusive right was not maintained as
a right.
Mr. Car I'ER. It was maintained as a right, and —
Mv. I'liELr.s. The whole correspondence is iu the printed Argument
-f the Case.
The !'residi;nt. Your argument goes to show that the right extends
beyond the limits of the islands.
lery;
lie in
rreut
WflS
I the
in it.
!tlby
}(1 OTl
they
illus-
^
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
539
Mr. Carter, Yes; we have the right to carry on the industry npon
the i.shinds; and, having that right, when the carrying on of the indus-
try is prevented by wrongful acts in other places, we havft the right to
protect ourselves by repressing those acts. Now the pearl fisheiie . of
Ceylon are another instance, as also the coral beds in certain jiarts 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 lii itain makes is, that these laws, whether the laws of sovereign
states, or of their (ioloni.al dependencies, are d«signed to operate only
on their own citi;:"ns, and are not aimed at the citizens of other uatiiujs,
iind that tliey 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 oidy designed to regulate the conduct of citizens of
the nations by whom they are made. It is not my puri)ose 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 thougli these regulations were drawn in terms limited to
the citizens of the nations by whom they are iiassed, yet in reality they
are designed to be operative upon citizens of all nations; otherwise
they would serve only to liujilitate a fuller enjoyment of the beneflts of
the industry by the citizens of other nations, without the comp. ition
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 resjjocting 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 JJritain, page 59, we find this:
It is next submitted —
Tliat international lav recognizes the rigbt of a State to acquire certain portions
of the wat'.ns of the sea and of tlie soil under tlie sea, and to include tbeni witliin
tlie territory of tlie Stuce.
'Ibis ali'ords a legitimate exnlanttion of the cases of foreign extra-territorial
iislj.'ry laws cited by the United States, (luite apart from any question wbetber tbey
ap])ly to foreigners or not.
But it aitbrds uo jiistitication for, nor are tbey analogous to, the Alaskan Seal
Statute, as is contended by tlie United States.
'I'be territory of the nation extends to low- water mark; but certai?' portions of
tlie sea may be added to the rloi .iiiion. For example, the sea which lies intr^ ftitices
(ernv, and, in certain oxceptioiitil cusos, parts of the sea not lying inter fa>u, ierr(P.
Tli(^ claim applies strictly to the soil under tlie sea. Such claim riay I'c legiti-
mately m;idt> to oyster beds, pearl tishorics, and coral reefs; and, in the '.die way,
mines within tlic territory may be worUeil out under the sea below low-v . a-: iiiarlv.
Isolated portions of the high sea cannot be talton by a natiou unless the bed on
which they rest can bo physically occupied in a manner analogous to the occtipalion
of land.
These ](riiiciples, though they explain legitimately all the examples of foreign laws
dwelt oil l>y the United States, show also that uo right to, or on, so vast an area of tlu;
high soa as Hchriiig 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 againstthecitizensof other nations.
They are obligetl to make that admission, for it is impossible to examine
the various statutes wliich have been passed by independent states
m
H ; I -Si
U !•
'I ;■
I
240
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
upon these particular subjects, without recognizing' the fact that they
are designetl 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 those fisheries are situate on the high seas.
The i'BESiUKNT. That does not seem to have been the contention.
It was founded rather upon the right of <iCcu])ation.
Mr. Carter. Well, I am going to discuss the ground upon w^hicli
the counsel for Great Britain put it, but they asswt that tliere is a
right to i>rotect, against the invasion of other nations, i)roducts of the
sea outsi'.le the three mile limit. I know they seek to base that upon
a right of property in the .and 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 rciisons upon which their asserted right of
property is founded. 1 am going to inquire into the validity of these
reasons. They say it is a property right to the bottom, and that it exists
wherever the bottom maybe occiiinefl, and does not exist where the
bottom cannot be occui)ied. Well, that amounts to this, then, that
wlierever a nation can occupy the bottom, although outside the teiiito-
rial limits, it may rightfully occupy it and exclude other nations from
it. But how can you occui)y 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 l^>rce and
exclude the citizens of other nations from it; and that is all the occu-
pation of the bottom that you can effect. The assertion on the ])avt of
my learned friends is, that wherever you can take such possession of
the bottom, yon can exclude other nations from it. Xow tliat goes much
furtiier than the argument of the United States, no i)art of wliich sup-
ports a general rigiit to thus ocxmpy the sea outside the three-mile
limit. We do not assert any such right, nor do we supi)ose that any
such right exists; but that is their assertion; and if it be tiuo, you can
take |)ossession of the bottom of the sea anywhere; and if tiiere is any
particular jiiece of coast oft" Great Britain, twenty miles away, where
the l)ottom can be easily reached, and M'hich is a particularly favorable
place for carrying on a cod fisiiery or a herring fishery, (ireat Britain
can take i)osscssi()n of it and exclude the rest of mankind from it. if
this bottom theory, upon wiiich they put themselves, lias any validity
or tuundation, that can be done. If the rigiit to establisli the industiy
rest upon an ability to occupy the bottom, then you can establisli one
wherever you can reach bottom; and if you can establish it in one
place, you caTi establish it in another. I do not suppose it is jiossible
to defend any right like that over the high seas. 1 do not sujipose it is
possible to defend any such right as that over the fisheries of tlie seas.
There must be some other primiple 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 I'ouiid in a
certain ])roxiiiiity to the coast of a country, and which can be worked
more couveniently 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 ndcs and ref/iiIatiouN passed lor the i)urposeof secur-
ing the products of the seas, and designed to make them moie regular
and al)uiidant. Those are the cases in which it can be done, and iu
T
OBAL ARGUMENT OF JAMES C. CARTER, ESQ.
241
i
those cases it is perfectly justifiable. It is where there is a natural
advantage, icithin a certain proximity to *he coast of a particular nation,
tcliich it can turn to account better than the citize7i8 of any other nation.
In such cases, if the particular nation is permitted to establish and
carry out a system of national regulation, it may furnish a regular, con-
stant supply of a i^roduct 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 1 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.
Undor 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 than in yours. We
can turn it to account; you cannot. We can use it 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 sliould not be disturbed. There are times wlien the
industry should be pursued; times when the industry should be closed.
That cannot be accomplished without national regulation. We have
done that. We have created an industry. There is a particular popu
lation of ours devoted to the work. Now, you must let us prosecute it
alone. It is not reasonable, it is not fair, it is not just, that you should
come in here after we have created this advantage and des' dl it, for
a mere temporary gain. Yon will not come habitually, you will only
come occasionally; and you will interfere only with the effect of ruining
us, without rea])ing any permanent advantage to j'ourselves."
Senator ^loRGAN. Mr. Carter, in point of fact, are these Ceylon iiearl
fisheries jind the coral fisheries of which you spoke held subject to the
right of free navigation to commerce!
Mr. Carter. ISo I understand. I do not understand that commerce
can be prohibited over them. Oh no; surely not. There is no occasion
to ])r()liibit 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, ami 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 tluee mile limit.
If they are so situated as to be the special advantage of a particular
power, and that i)articular power chooses to ini])rove that natural
advanrnge by the creation of an industry, it establishes a right which
it can defend from invasion by the citizens of other nations. The
explanation of this which is attempted to be made in the printed 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
B S, PT XII 16
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242
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
of the bottom iu 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 occuiiation,
unless the law should choose to declare that it should be fleemed t« be
the subject of exclusive occupation; and as I have already, I think,
suflBciently shown, the law will not do that merely to gratify the whim
or iiiC aml)iti(m 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 ditt'erent 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 to do that. It is not consistent
witli the law of nations that it should do that. There is no occasion
for it to do that. There is no need of it. All that it is necessary for it
to do is to enforce such regulations on those places as are effective and
sufficient to protect the right from invasion by the citizens of other
nations.
Now let me bring the case of the seal fisheries on the Pribilof Islands
before the attention of the Tribunal, and compare them with the 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 bottoni of tlie 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 muni(:ii)al regulations
operative upon the sea, why should not this fishery be protected in the
like way? It requires no greater exercise of authoiity. 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 i>articular 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 i^i from being broken up 1)y
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 x^eculiar natural advantage connected with those places and belong-
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
243
go to
iiulus-
upby
seiitial
i pearl
I have
Is, but
, there
elong-
ing to the nations Avliicli 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 wliich
govern tlie laws of pro])erty. In the next place, tliese industries, if lett
open to the unregulated invasion of the citizens of all nations, would
be used up and destroyed. The only condition upon whicli they can
be preserved and made beneficial to manldnd is that they be allowed
to be worked and operated by the particular power which has the best
.acilities 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 nuiukind may have the
benetit 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 i)roi)erty of the
particular i)owers who assert the right to the industries. It is not their
property at all. It is not within their sovereign Jurisdiction at all, any
more than any other part of the high seas, but it is a theatre where
their defensive regulations may be put in operation, and where the
industries of their citizens may be defended.
Let me support these views by a relercnce to the opinions of the best
writers. I read from Puften<lorf on the Law of liature and Nations.
The extract is found on page 134 of my i>rinted argument:
As for fishing, thoiijfli it liath much more ahniidant sulijoct iu thf sea than in Inkcs
or rivers, yet "tis luanilest that it may in part bo exhausted, and tliat if all nations
shonhl desire snch right and liberty near the coast of any particular country, tliat
country must bo very much i)rojudiced in this respect; especially since" tis vt ry
usual that .some particular kind of lish, or perhaps some more precious counuodity,
as pearls, coral, amber, or the like, are to be found only in one part of the sea, and
that of no considerable exteut. Iu this case there is no reason why the borderers
shcuild :.ot rather challenge to themselves this happiness of a wealthy shore or sea
than th'tse 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 tish, shells, pearls, amber, etc. ; now in all these respects its use is not
iuexhaustiiilc. Wherefore, the nation to whom the coasts belong nuiy apjjrojiriate
to themselves and convert to their own ])rotit, an advantage which nature has so
placed within tiu'ir reach as to enable them conveniently to take ijossession of it, in
the same manner as they possess themselves of the dominion of the l;aid they inhabit.
Wlio ciin doubt that the [.earl fisheries of Bahrem ami Ceylon may lawfully become
pri 'erty i' And thougli where the catching of fish is the only object, the fishery
ai)pcars less liable to be exhausted, yet if a nation have on their coasts a ])articnlar
fishery oi' a i)rofitable nature, and of which they nmy become masters, shall they not
bo ])ermitted to appropriate to themselves that bounteous gift of nature as an
■•ippendage to tlie country they jiossess. and to reservfi to themselves the great
advantages wliich their commerce may thence derive, in ease there be a sullieieut
abundance of fish to furnish the neighlioring nations?
(.S(!c. 2) A nation nmy ai>proi)riate to herself those things of which the free and
common use would be prejudicial or dangerous to her. 'IMiis 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, upim that very firm basis of reason and authority we place the
riglit of the United States to protect themselves in the enjoyment of
the industry Avhich they have established ui)on these islands. They
have peculiar advantages, suineme advantages, for ap])ropriating the
annual increase of the seal, without diminishnig 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.
\t
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244
ORAL ARGITME;4T op JAMES C. CARTER, ESQ.
The seal is exlianstible. There is not enough for all, and they are
entitled to challenge for theinselvos the benefits of iliis industry iu
consequence of tliese advantages, and in consequence of the steps
which tlicy have taken to improve them.
I cannot think that there is any sound answer to an assertion of the
right of a property interest iu this industry placed upon that basis,
and this, too, irrespective of a pioperty iu the seals themselves.
That concludes my argument upon this question of the property
interest of tlie United States in the industry establislied ux)on the
islands, irrespective of a property interest iu tlie seals.
I now i)ass to the consequences of the establishment of those rights
for which 1 have contended so far as they involve the question, what
action the United States may take for tlie purpose of protecting tlieui-
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 enforc-
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 proi)erty, 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 ne(!essary to protect the right? No; they cannot. AVe n»ake no
assertion of that sort. AVe could not substantiate it, if we did. The
sovereign Jurisdi(!tion 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.
Beyoiul that her laws, as laws, have in general no force or operation.
Beyond that her legislative powers have no ettect. All that we take to
be admitted.
Sir CiiARLES KussELL. You mean as against those who are not
subjects or citizens?
Mr. Carter. Yes; against those who are not subjects or citizens.
That is what I mean. If her legislative power extended over the sea,
she would have a right, of course, to legislate for everybody that came
within tlie 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 bfuindary 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 si>ace 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 laud she has an absolute power of exclusion;
but over these territorial waters, although she may generally extend
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
245
her legislative power over a belt throe miles iu 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 tlieu! IJow does she acquire any right to protect it I
She has a right to protect it, just as any individual has a right to
protect his property, where there are no other meaiss, that is, hy force;
not by the exercise of legislative power, but by the exorcise oi executive
power — an exercise of natural power — an exercise of what you may
call force. Individuals can defend their rights and projjorty by tiio
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 pui])ose; not farther.
Whatever force it is necessary to employ to defend myself, I may emi)loy
against him. So if a man comes upon my property, 1 may remove him,
if 1 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 i>rotection survive to individual
man even in civil society, but we may not go any farther tlian 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
lurnishes 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 suuunou another
nation for judgment. What can natiims do? They can only use this
5ame sort of self-defensive i)Ower 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.
W^e 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 riglits. 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 tlie 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 jurisdictiou of the nation
over the place. It was simply an act of reasonable and necessary
force employed for the purposes of self-defence. The nation had the
right to carry on the war. Its existence, perl>nps, depended ui)on its
ability to subdue its adversary. It could not earry on the war suc-
cessfully unless it had the right of shutting up the i)orts of the enemy,
and, therefore, the neceiAsary purposes of selfdefence 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
3xtension 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.
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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 exorcise
a power of that sort in time of peace is a (luestion to wliich I shall
presently come. Wliat I am explaining now is the charavter nf the act.
It is not Icffishdive; that is certain. It is an act of self-defensive
jwtver. There are other instances of it in the dase 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 ])urpose of protecting yourself against your
adversary; and even when there is no condition of war. "hey had a
rebellion in Canada some years ago, and a vessel was litted out by
persons making use of the soil of the United States for the pur])ose of
aiding the rebellion, as it Avas called. A British military force crossed
the Niagara liiver, ca])tured that vessel in the territory of the United
States — not on the high seas, but in the icrritory of the United States.
Senator Morgan. You refer to the Caroline?
Mr. Carter. 1 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 IJanish 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
Avould fall into the jjossession of France, and the seizure was defended
by her ablest statesmen on the ground of necessity. Tliis 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 suft'er 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 a(!ts of self-defensive authority — the extent to whi(!h they may
go, the necessities which create them, how far tl;e necessities extend —
constitute a great chai)ter in international law, and are all dealt witn,
all their limitations defined, and the principle which governs them laid
down.
What is said upon the other side ? They % ce 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 iu 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 coarse it musli
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 iu time of peace — if that is true — the
assertion that it has any rights at all is mere empty sound. A right
that cannot be defended amounts to nothing. I would like to have
those who assert that a nation cannot defend itself and its property in
time of i)eace by acts of necessary self defence, tell me how it can defend
them. 1 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 <>f
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, Avhether it be in time of war or time of peace. It may
arise in peace just as much as in war. In point of fact the principal
occasions, and the most frequent occasions, for the exercise of this right
happen to occur in time of war, and, therefore, the instances in which it
is exercised and the rules which govern its exercise are found in bellig-
erent conditioiis far more than iu conditions of peace. The absence of
the occasion is the reason why we find less discussion of these rights in
time of pciice, 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 difierent states for the pur-
pose of protecting their revenue. I before remarked that the protection
of the revenue of a nation could not well be ett'ective unless the conduct
of foreign vessels could be controlled at a greater distance than three
miles from the land. If a vessel intending a breach of the revenue laws
of a nation had the power to approach its shores to a distance of three
miles from the land, and wait outside of that limit for a favorable 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 a(!t of self defence. It is an executive act,
designed to protect the revemie 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 oil' the coasts. Consequently, if a vessel appeared ott' the
I
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ORAL ARGUMENT OF JAMES C. CARTI.R, ESQ
w\
coast and did what was called "hover", that is not proceed npon her
voyajye, but wait there apparently lor a favorable time to run in, s!ie
subjected herself to the penalty of those laws, and nught be capturcjl.
I think no nation has ever resisted the enactment or enforcement of
those laws.
The Pkksident. I do not think you are quite right about thiit.
Mr. Carter. So far as I am aware. There may have beiMi cases
where they were enforced under exceedingly unreasonable conditions;
but I do not myself remember them.
The President. I believe cases of that sort have given rise to iiitor-
uational 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 n<»t
been the case. My acquaintance with them, I confess, has been derived
mainly from the treatment of them that we tind in books of international
law; they are treated in such books as exercises of the power of solf-
deience, not objected to by nations, unless they are altemi)te<l to be
enlbrced in a very unreasonable way. To illustrate them, I must again
refer to a decision which I have alluded to once before.
This was tiio 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. Su]). Court
lieports, p. ISO.) I read from the opinion of Mr. Chief Justice Mar-
shall on page 181 of my printed argument:
That the law oi natious piohihits the exercise of auy act of nntliority nvor ;i ves-
sel in the situation of the Aurora and that the seizure is, on Hint accotint, a lucio
maritime tresjiiiss, not within the exception, cannot bo admitted. To reason Irom
the extent of the protection a nation will attord to foreigners, to the extent of Uia
means it maj' use for its own security, does not seem to be ])erft'Ctly correct. It is
opposed by principles which are universally acknowledged. The authority of a
nation within its own territory is absolute and exclusive. The seizure of a vessel
within the range of its cannon by a foreign force is an invasion of that territory, and
is a hostile act which it is its duty to repel. But its power to secure itself from
injury may certainly be exercised beyond tlie limits of its territory.
Up(>n 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. Auy attempt
to violate the laws made to protect this right is an injury to itself whioii it may
prevent and it has a right to use the means necessary for its prevention. These
meiins do not appear to be limited withiu any certain marked boun laries, which
remain the same at all times and in all situatious. If they are such as unnecessarily
to vex and harrass foreign lawful connnerce, foreign nations will resist their exer-
cise, if they are such as are reasonable and necessary to secure thoir laws from
violation, they will be submitted to.
In different seas and on diil'erent coasts, a wider or more contracted rauge in which
to exercise the vigilance of the government will be assented to. Thus in xhe Cliannel,
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 BUB])icion of attemjtting an illicit
trade nmst necessarily lie restricted to very narrow limits ; but on tlie coast of South
AiiuJ'ica, seldom frequented by vessels but for the purpost; 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
securf that monopoly of colonial commerce, which is claimed by all nations holding
distant possessions.
If this ri^'jht be extended too far, the exercise of it will be resisted. It hiis 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 bnized vessels not in the ueijfhborhood of their coasts. This practice
was the subject of long and fruitless n'^ gotiations, 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 ooold only be exercised within the range of the
car.non from their batteriet.
ORAL ARQUMKNT OF JAMES C. CARTER, ESQ.
249
Indocd, tilt' rij^lit jjiven to our revcnuu cutters to vinit vessels lour lt'n<;iies from
our coimts, in ;i (U'cliinitioii tlmt in the opinion of the AniiTlitun j:;o\ cniincnt no miicIi
)iriiicij>le uh that contuniluil for hiis real existiMice, Notliin^, then, in to ho tliiiwn
iVoni the liiws or tiie UHiiges of nations, which gives to tliis jiiirf of the contract
before the court the very limited couHtrnction whicli the ])laintilf insists on, or
which ytroves that the seizure of the Aurora l»y the Porlugut\se goveiuor was an art
of lawless violence.
Tliat wry extract — I tliink the whole of it; at all events the most
siibstiititiiil i>iut of it — was quoted by Lord Ciiief Justice CocUbuni, of
Euolaud, in deliverinj? his jndoiuent in the very ceh'biated and riither
recent case of the (^iircn r. Kvhn, It is foun<l in tlie L'nd l-lxchequer
Reports. 1 do not know but my learned friends may have it in tlieir
possession. I find that I have tiie passage. Ti»e part to wliieh I par-
ticubirly 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 sliijis in this jiart ot
the sea, has bccii conlincd to the maintenance of neutral rights ami ohligntions, the
prevention of breaches of the revenue and tisliery lasvs, and, under parlieulav cir-
cuiiiHtances, to t-ases of collision. In the two first, tlie legislation is allogi^tiier
irrespective of the three mile <listance, being founded on a totally different jiriiu-i-
ple, viz, the right of the state to take all necessary measures for the jtroteetion 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 i'. lliibbart.
And he then cites the passage Avhich I have just read from that
opinion.
[The Tribunal thereupon adjourned until Tuesday, April 25, 1803.]
it '
in
ft
I n
fpm
FIFTEENTH DAY, MAY 2^", 1893.
[Tlio Tiibuiial convened pursuant to adjourunient, all tlie Arbitrators
being present.]
The PUESIUENT. Mr. Carter, we are ready to hear you.
Mr. Carter. Mr. President, at the hist sitting of the Tribunal at
which argument was hesud, a question was addressed to me by the
learned President in the course of my arffument whi<!h I did not at
the moment precisely understand, or I should iiave answered it at that
time. I thought it had more particular refereiuje to the constru(!tiou
to be placed upon Article VII of the Treaty, and therefore said that I
would postpone my answer to it until I catne to treat of that article. I
had been insisting that the grounds and reasons of my argument in
support of the proposition th.at the United States had a property
interest, were not drawn from considerations selflsh and peculiar to the
United States, but were such as interested the whole world; that the
l)roperty 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 flftli fpiestion to be
submitted under the treaty, or whether it was a qualified property
interest of a different kind. I should be niisunderstood 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 conmiou 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 ditt'erent from a property interest held niuler other circum-
stances. It is a full and absolute property, entitled to all the protec-
tions of property, and which confers v^-on the owner all the rights
which property under ai.y 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 question whether, assuming that
the United States has a property in the seals, or a pro])erty inteiest in
the industry which it maintains upon the Pribilof Islands, it has tlie
right to protect that property, or that ])roperty interest, when neces-
sary, by the employment of reasonable force on the high seas. 1 had
supported the affirm.ative 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
invfided upon the high seas except by the employment of force. I had
undertaken to show that that was the universal method whi(!h 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.
260
ORAL ARGUMENT OF JAMK8 C. CARTER, ESQ.
251
The answer intiinatod to that view in a part of the arjjiinient of (heat
Itritiaii is that Lhu iuHtances in whicli a nation may employ force npon
tlie hiffli Heas to protect its riglits and to capture vessels by means of
tlie employment of force, were limited to eases of belli^ierein^y, and do
not exist in time of ])eace. 1 proceeded to say that that was not the
ease; that althon{;h the instances were more frequent in time of war
where the employment of lorce was resorted ti*, still whenever tlio
necessity occurred, which was the sole foundation of the right, it was
resorted to in peace jnst as min-h as in war. 1 alluded, in support «)f
tliat view, to the opinion of Mr. Chief Justice Marshi)Il of the Su|)remo
Court of the United States in the ease of Church rti. Ilubhiirt, wlii(;h
was a case where a nation luid established a refjulation for the purpose
of i)rotecting its coloinal trade. The vessel of another country con-
templating an enterprise of an illicit character, in violation of the exclu-
sive right of the luition 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. !Sho was
seized, carried in, and condemned, and that condemnation was fully
sustained iy the Supreme Court of the United States. Not only was
the condenination itself supported, but the ref/itlation was also sustained
as a lawful one. That decision 1 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 r.ench in
England, in giving his opinion in the celebrated case of the (^)ueen va.
Kehn.
With the citations of those commanding authorities, I might well
leave the subject. That decision in the narrowest view of it tally sus-
tains the ri'Jit of a nation to employ force in time of peace n|)on the
high sell'' for tl'o purpose of arresting and capturing a vessel which is
actually eji- iged 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 del'ence
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 actiudly
engaged in an ottence 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 lield ol^ legislation, and
assume a limited and qualified right to make laws o])erative 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 u])on
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
regulatiou which makes that conduct, of itself, a crime, that, we must
.1
I-
:»■
252
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
I
admit, is a piece of legislation, and assumes the right — a limited right,
it is true — of passing laws operative upon the high seas.
All the doubt and all the controversy which have arisen in reference
to this question of the exercise by a nation of the right of self-defence
ujton the high seas, turns upon the validity of regulations of that zC'lI,
reiiulations which go beyond the mere shaping of the rigl't of self-
defence and prescribing how it shall be exercised, and undertake to
create distinct oflences. The power of a nation to do that has been dis-
puted, and may ])erhaps be still the subject of dispute. It will be
observed that this exercise, even of tlic right of legislation in the cases
wliich I have nuMitioned, (loes not involve an assumption of u general
autiiority to legislate over the seas. It is limited strictly to the case
ot sell'deicnce, and is calculated to provide means by which that right
of self defence nuiy be more efllciently exerted; but, nevertheless, it
does partake of the quality of legislation. Whether it is valid or not,
has been disputed.
That precise questi(m arose in the Supreme Court of the United Stfites
in the case of Rose r,s'. llinicly, which is rep(n'ted in 4th Cranch, page 241.
The circunistances of that case were substantially these: The French
authorities liad 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 cajtture was made outside of the two-league limit.
The question was whether that capture could be sustained, that is to
say, whether a ca]»ture by one nation upon the higli seas of a vessel
belonging to another nation, which had been engaged in violating a
municipal regulation, was lawful. Chief Justice Marshall was ot o])in-
ion that it was not lawful; but a nuijority of the members of the court
did not agree with him upon that ]toint, and so the question was passed
over without being decided, the case being disposed of upon another
point. It agaiii aiose for decision in the case of Hudson vs Guestier,
6th Cranch, 2S1. That case involved a violation of the same ordinance,
and the capture had been made outside of the two-le-iigue lin)it. This
case of Hudson vs (luestier is reported twice. It came before the
Sujircmc Coui t 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
difleient from what it was when it canie before the court in the first
instance. In tiie 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 cai)ture was lawiul ;
and the expressions in the opinion of Mr. Chief Justice Marshall, in
Hose V. Ilimel}/ — his f//c<a to the contrary effect — were overruled; and.
therefore, so iar as the Supreme Court of the United States is coii-
cerned, it is held tliiit regulations of the chaiai-ter I have mentioned,
even wlien they go further than to merely provide for capturing a vessel
that is actually engaged in a violation of the rightof 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 argurient,
avoids all controversy of that sort. AVe do not ask for the apjylication
of any doctrine, even although we might, to the etfect 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 odV'ce of pelagic sealing
when committed by vessels of another nation is ^ crime for which we
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
253
can pvnish the officers and crew of such vessel. That wonld be legis-
hitiiig Cor the high seas. VVedo not ask for a decision that the United
States can nialic a Imv and enforce it, by which slie could condemn a
vessel that had been engaged at some imst lime 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 Avhenever a vessel is
caught red handed, ^flz/raute 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 emyjloy necossary force for the purpose of
protecting, in the only way in which it (-an protect, its property in the
seals, or its property interest in the industry which it nuiintains upon
the islands. That is the extent of our claim.
If the United States cannot protect their i)roperty 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 tiio
high seas, as well as upon the land; or, if not that, that it has a i)rop-
erty interest in the industry which it carries on at tlie Pribih)f 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 otf—
commands her to desist from the tresi)ass in which she is engaged.
Suppose the vessel refuses, what is to be done then? Is the cruiser to
allow her to i)roceed 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 tribnnals?
Is the remedy of the United States limited to that? That, of course,
would be wiiolly ine<fe(!tive; and if it were effective in any degree, or
in any instance, it would require the entire navy of the ITiiited 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
comi)ort with the dignity of a nation. No nation has ever yet (;onde-
scended,in the defence and protection of its rights upon the high seas,
to wait until it could resort to the municipal tribunal of some power
and the: 3 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 condu<'t of these
Canadian pelagic sealers under such circumstances the subject of com-
phiint to Great Britain herself. What should it say to (Jreat Hriiain?
Ask her to prohibit this conduct? How could Great Britain prohibit it?
Only by emjiloying a part of her Heet to do it. Is it the business of
one nation to furnish a force to jnotect rights of anoiher nation?
Would not the prompt answer of Great Bi'itain under such circum-
stances be: "This is not our act; we <lo not adopt these acts of the
Canadian sealers; we agree that you have a ])roperty in these seals; we
do not command, encourage, or in any manner assist, the action of tliese
pelagic sealers; if they are trespassing ui)on the rigiits 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 theemi)loymentof force — force employed as an
individual would employ it; force not derived from any law whatever,
but force d lived from the tact that the nation has a right upon whi(!h
some one is trespassing, a tresimss which the nation cannot i)revcnt in
! I
li il
r-
m
254
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
any other way, except by the employment of force. These methods of
defending national rij;hts, frequently asserted in time of war, are not
so frequently asserted in time of peace, but only because the necessity
does not so fre(iuently arise. ]3ut still they are asserted, and must be
asserted, whenever a nation seeks to protect witii eflficiency her colonial
trade from invasion, or lier revenue laws against smuggling by citizens
of other nations; and must be asserted whenever she wishes to enforce
with eiliciency in time of contagion her (juarantine laws. They must
be assorte<l 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.
Inasnmch as 1 wish to be precise upon this point, I have drawn up a
series of i)ropositions which embrace the views entertained and asserted
by the (lovernmeut of the United States upon this particular subject.
And they are these :
First. TLh territDry of a uatiou cousists of the land within its dominion and what
arc comuiouly 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 teriitory as above described, except in special instances where, for reasons of
necessity, a nation may exercise a limited legislative power over neighboring parts
t)f the sea beyond the narrow belt above mentioned. Outside of the territory of the
nation its laws, as laws, have, except as above mentioned, uo operation or etlect.
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
Ineach 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 abs(dute eiiuality. In legal contemplation they are there when-
ever the interests which they are bound to defend, snch as their property, their citi-
zens, or the projierty 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-tivident proposition; for,
inasmuch as a nation cannot prevent invasions of its rights upon the high seas by
legislation, or by judicial iiroceedings to enfoi'ce legislation, it would be absolutely
without means for prot(>cting them, unless it had the i)ower 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 inell'cctive, and would, besides, not comport with the dignity of the nation.
Sixth. The action of the otlicers and agents of a nation in exercising this right of
UiH'cssary 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
jiowcrs, assume the form of executive instructions, or nnmicipal laws, or rules.
Neither are necessary to the exercise of the i)ower. They serve to govern the exer-
cise ot the piiwer which exists independently of them. In constitutional govern-
ments, where tlie sovereign power is distributed anmng different departments, such
rules and regulations may be necessary. Other governments cannot insist upon
tlUMU.
Seventh. In the exercise of this i)ower of self-defence the nation is responsible to
other nations whose citizens may have sutiered from its exercise. If a necessity is
shown for its exercise, ami the limitations of such necessity have been observed, the
act is Justified. If otherwise, a wrong has been committed and reparation must be
made.
i;ighth. The capture by a belligerent nation of the vessels of a neutral power when
found carrying contraband of war or engaged in running a blockade is a familiar
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
255
instance of the exercise of this right of self-defence. The rules derived from the
practice of nations governing the exercise of such right of capture, with such other
reasonable rules as tlie belligerent nation may prescribe, are not mnnicipal laws, in
the full sense, but regulations designed to govern the conduct of the olHcers and
agents of tlie 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 conrts, 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 u])on the manifestly
erroneous assun.jj.ion 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 Avould follow that a nation could not interfere with a
vessel under a ditlerent 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 tlie 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 rei)ugnant to reason, as well as to the actual practice of niitions.
Eleventh. The niuni(i[)al 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
riglit ; 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.
Knles 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 ])ro-
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 perscms for acts done by thom 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 reasoniible 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. Ilubb^irt, 2 Cranch, 287.)
Twelfth. But it is not necessary for the Uovernment of tlie United States to insist,
nor does it insist, njion 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 pant been guilty of pelagic seal-
ing, nor upon a right to establish any area of exclusion around any part of i:.-( u'rri-
tory. It insists only that if it be determined that it has a property in the Ah skan
seal herd, or a projierty interest in the industry w^hich it maintains upon thePribiiof
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 (Jovcrnnient 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 m the taking of seals
at sea, it would have the right to prevent such taking of seals in the only manner in
i!/i
ll
!"
II
;<.i
i:-
( '
v.^^
256
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
which it would he possible to prevent it, namely by the caiitino of the vessel; and
that it can iiiiil<c no ditterence whether such venscl he three, or (our, or )uore, miles
from such islands; and that if snob capture can ho made anywliero witliin fonr miles
of said islands, it may lawfully be made at any distance from the islands where such
right maj he invaded, in the same manner.
Fourtt'enth. The United States insists that it would have the right last above men-
tioned witliont passing any municipal law, or adoptin;^ 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 answf^ed by ]»Trze laws,
naiufdy, to give the citizens of other nations notice and warning of its intentions,
regulate the conduct of seizing oflicers, i)revent injustice and oppression, and inform
the goveinmcnt, and other governments, respecting the r»'gularity of any seizure, to
the end that, if rightful, it should be adopted by the United States, anil acijuiescod
in by other governments which might be interested; and, if otherwise, be repudiated
and made the subject for just reiiaration.
Fifteenth. In ]es])ect 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 ho atfec'ted, has no tendency to impair the validity of a condem-
nation otherwise valid.
Sixti.'enth. 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 exceptioual instance in which nations are
permitted to del'end the general order, security, and ]>eace of the seas. Hut it cannot
be doubted that, irres])ectiv6 of such general consent, and had it never been given,
any nation would have the right to defend ono of its own ships from capture l>y
pirates, and, in the course of such defence, and as a i)artof it, to capture the piratical
vessel and condenni it by proceedings in its own courts.
Seventeenth. The (iovernmcnt of the United States, therefore, bases its claiiu to
defend its ])roi>erty interest in the seal liord and in its industry maintained upon
the I'rihilof Islands by such force exerted u]>on the high seas as njay bo reasonably
necessary to that end u]>on 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.
i!
Those, then, are the grouncis upon which the Unitetl States asserts
its right to tlie employntent of reasonable force. If it has a property
in the seals, that property is invaded whenever they are attacked by
])elafiic 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 i)r)ictice by the arrest and seizure of the guilty vessel. If it
should be decided that it has not a jnoperty interest in the seals them-
selves, but has a property iiitevcst in the industry winch it maintains
upon the Pribilof Islands — a rightful, lawful and useful industry — then
its right to arrest the i)ractice of pelagic sealing np(m the sea does not
depend upon a i)roi)erty interest in the seals but upon the tact that that
]>ractice is an es.seutial wronfj, and is, besides, an invasion of the right-
ful industry which the lJnite<l States carries on upon the land. To
justify that act of ])elagic sealing, it is necessary to show tluit it is in
itself a right, and if that were shown, then the United States would
have no right to interfere witli it; but if it is in itself a «'r«nr/ — if, upon
the fundanuMital and iMiiuutable distinctions between right and wrong
everywhere prevalent, ;i])on tlie sea as well as upon the land, that act
of destroying a useful race of animals is not defensible as a n<//t^, then,
II I:. '
II I
ORAL ARGUMENT OP JAMES C. CARTER, ESQ.
257
interfering as it does with the lawful rights and industry of the United
States, it has the right to j)revent 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 tliat 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
conunit a solecism. Such a thing as that would have none of the char-
acterislics of a right.
We defend it, in the next place, upon the practice and usage of
nations. Wherever a nation is shown to have a right upon the iiigh
seas which is endangered by the wrongful acts of the citizens of other
nations, there, ac(!ording to the" usage and practice of nations, at all
times, in peace or in war, that right has been defended by the employ-
u lit of reasonable force.
f|i
Vm
Now, Mr. President, I have concluded my argument upon the ques-
tion of the right to employ force ui)on 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 proi)erty interest
in the industry carried on upon the Islands of which i)elagic 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
eitiier 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 mich 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 Kussell. 1 beg my friend's pardon for a moment. Mr.
President, I wish to re-state the jxjsition 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 (luestions of article VI, are distinct from, and are
to be dealt with in argument, distinct from the (luestion 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 ([uestion 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 ami myself, our argument upon
the question of right, and not mix up with that question of right the
entirely separate and distinct question embracing difl'erent considera-
tions which touch the matter of regulations. With that respectful
rei)resentation 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 pro(!eeding. The Tribunal have agn^ed that
they would allow the counsel pf yitUer ptnty to piout'ud iu tUcir urgu-
B S, PT XJJ X7
ih'
• 111
\''i
•11
258
ORAL AliGUMENT OF JAMES C. CAUTKR, ESQ.
ineiit, ac(!Oi'diii}jf to tlioir own coiiveiiienoe. We have merely asked tlie
counsel in the i)rocee(liiijjf lieie as much as they would deem it possible,
to treat separately in two distinct parts of tlieir arj;iuneiit the lefiul
questions whieh are enumerated iu article VI of tlie Treaty, and the
question of repulatioDs which is alluded to in artitde VII. This, I
notice, Mr. Carter is pre])ared to do. He has been dealinj? until now
with tlie legal questions, and 1 think he is coming now to the points
which are referred to in article VII. Conse(iuent]y tliat 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 nnitter according to tlieir own convenience, either sepa-
lately in two distinct arguments, or else in the same way as Mr. Garter
has dealt with it. I conceive that with the agreement of all parties
Mr. Garter is free to continue his argument as he intended.
Mr. Justice Harlan. If the President means to say for the Tribunal
that there is a recognized right of counsel to make two arguments, first,
on the five questions named in article (5, and after that, at some future
time, to claim a right to enter into a distinct avgnment as to regula-
tions, I do not concur in that view. And 1 do not understand that the
Tribunal have so decided. I do not think we need to retire to consider
that. I make these observations so that it will not hereafter be said
that the right is reserved to cut this argument in two and to have this
Tribunal make an intimation as to our conclusions u])on the first five
])oint8 in article VI and thereby inform tlie public of our conclusions
upon those ])oints beiore we take up the subject of regulations. I do
not wish to be understood as concurring in that view.
Lord Eanken. That is a different question. We have not expressed
any opinion, or attempted to come to a coiuilusion 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 IIarlan. I do not understand that there is any differ-
ence between us as to what we have deciided. We did agree that
counsel should proceed in their argument as they should deem i)roper
covering these (luestions.
But 1 understood the President a moment or two ago to say that the
Tribunal had decided, or were to be understood as having decided, tluit
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, alter an intimation of our opinion upon the first five points,
make au 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 ui)on 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 afterwards resume the argument with reference to the regu
lations.
ORAL ARGUMENT OF JAMKS C. CAUTER, ESQ.
259
at the
(I, that
argu-
somo
)()iiits,
coun-
claim
istood
ve cou-
do not
ed the
id that
I, after
L'e luat-
begiu
points
Sir CnAKi.Es IJussELii. If I may with i)roi)riet.v iiitiMpose, there is
no reason why I shouhl not explicitly state what we mean. What we
mean is this: That my learned friends and myiself j)roi)ose to siibnut a
complete arj;iiment, dealing with one subject, and orte subject only,
distinct and separate in its character and to which lejjal considerations
alone apply; that haviujjf presented that argument, unmixed and uncon-
fused with any other on a ditVerent subject, we shall then, at what ever
moment is convenient to tlie Tribunal, i»roceed, may be immediately, to
discuss the (piestion of regulations; but that we shall present two
arguments separately.
Lord Uanis'n. You will not call upon us to jiive a decision upon the
five points before your argument upon the question of regulations?
Sir CiiAKLi.s llussELL. No, my Lord, I have not suggested that
at all.
Lord Hannen. That is the only question ux)on which it is supposed
there is a diilcrence between us, and that will, of course, disappear in
view of your exi)lanation.
Sir Charles Kussell. I ought to state, perhaps, that I mentioned
this to my learned friend, ]\Ir. Phelps, as a course whi(;h 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 diircrenccs
of opinion amongst the Tribunal; and 1 tliink my learned friend will
say thiit he recognised my suggestion as a reasonable one.
Mr. Phelvs. Yes; the course suggested by Sir Charles Kussell will
be quite acceptable to us. The only point of dillereitce at the outset
was that suggested whether the Tiibunal was called u])on to express a
decision, or an opinion, upon the previous points before hearing the
argument in respect to the regulations; but as c«mnsel on both sides
understand it iu)w, tliat claim will not be made; and we do not object
at all to the course of the argument projiosed by my learned friend on
the other side.
Justice llARLAN. Of course what I state show^s that fmade no criti-
cism of tliat arrangement at all. I only understood the oi)servation of
the President to go bej'ond tliat. That is why I made any remark.
The Pk];sident. I jjierely 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 i)arties.
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 preservatu)n of the seals. 1 think 1 have sev-
eral times observed in tiie course of my argument that, however the
two nations may have differed ui)on Avhat nuiy be <!alled <|uestions of
right, and however wide their ditfercnccs 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 a')i)arently agreed,
and upon which I hope they will continue to be agreed until the argu-
ment of this ccmtroversyis disposed of; and that is, the necessity upon
all grounds and in the interest of all nations that this useful race of
aninnds should not be exterminated, but should be preserved, an<l its
benelitsand blessings be made available perpetually for the use of man-
i
;
i
i Ira
3?
260
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
Sii
Iviiul. It will be seen tliiit the treaty itself ])osses.ses two principal
asj)ectH. One of tlieiii (tails ujioii this Tribunal to deteriiiine certain
(piestions atlecting assertions of ri<jht upon tlio part of the United
States, whi(!h (juesfions, were they dectided in favor of tlie United
States, would, or nii]nht, presumably, confer upon that nation the riKht
to exercise this i)o\ver of ])rotection, and ren<ler any further considera-
tion of the (juostion of protection needless. The next feature of tiie
treaty is tiiat, if those (picstions should be deteiniined adversely to
the IJnited States, so that that (loverninent 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 ciuestion as to the interpretation of article VII
of the Treaty, which I will now read:
If the dotcaininiitioii of the fmoj^ctiiirt; <iiieNtioiis as to tho exclusive jurisdiction of
tile lliiiti'tl f^tiiti'S shall leave tlio siil>Ji'('t in siK^li iMiNition that the concurrence of
(ireat iiritain is neccssiiry to the cstahjinlinicut of K'cfjulations for the ])n)])(!r ])ro-
tcction and preservation of the I'ur-.scal in, or liMbitnally resovtinj? to, tlu* IJehring
Sea, the Arbitrators shall then determine what eoncnrreut Rcf^ulations ontside tjie
jurisdictional limits ol' thi^ resjiective (jovernments are necessary, and over what
waters sucdi IJe};nlati()ns should extend, and to aid tiieni in that deterinination the
re]iort of a .loint. Commission to he ai)])ointed by the respective (jovernmcnts shall
be laid before them, with such other ovi(h'nce as either (iovcrnmeut may submit.
Tho Hi^li C!ontract injj; I'arties I'lntherniore agree to cooi)erate in securing the adhe-
sion of others Towers to sucli Iligulations.
The lan,Quaf>e'which is used in the beft'iuningof this article is "If
the deh'rniiiiation of the foregoing- questions as to the exclusive jiirix-
diction of tlie United States". There are five foregoing (piestions and
all the live seem to be en braced by that language. And yet when we
look to the last of those live; <inostions, we tindit to be, "Has the United
States any right, and if so, what right, of protection or property in tho
fur-seals freijUCMting the islands of the United States in l>elning Sea
when such simIs are found outside the ordinary three-mile limit T' That
docs not appear, on its face, to be a question relating to the exclusive
'jurisdiction of the United States, and thci-efore it would not, on its face,
ajjpcar to be i)roi)erly 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 tht^ treaty, as a question relating to the exclusive
jurisdiction of the United States, using that word '■'■jurisdiction^' in tiie
sense in which it is so often used, in the sense of power. In other words,
the Treaty regards the question, Avhether the United States has any
exclusive projjcrty interest in the seal herd, and an exclusive right to
l)rotc(tt them upon the high seas, as a (piestiou of jurisdiction on the
high seas; proceeding upon tlie view that if the United States has the
exclusive projjerty in them, or a property in this industry which justi-
fies tliem in exercising a right of ])rotcction, that it has the exclusive
right of protection upon the high seas, and that that is properly enough
styled a (juestiim of "jurisdiction". I myself incline to that interi)re-
tation, but as I have already said in a former part of my argument, it
is not necessary to go into any nice interiiretation of the language in
that pjirticular; for whichever interpretation we adoi)t, the same result
is practically reached.
1 say it is of no i)ractical consequence which view is adopted. The
same result will follow, whatever answer is given to this question of
interpretati(»n; fitr all the five questions are to be determined before
tU^ Ti'ibuna-l is culled u|)ou to consider the question of regulations; and
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
261
by this
[•clK-slve
ill the
■words,
as any
fight to
on the
las the
h justi-
clusive
enough
iiterpre-
ment, it
uage in
e result
The
sstiou of
lis;
before
aud
the disposition to be made of that question depends upon the coiulition
in which the subject is left after the decision of tlio./u'eciuestions. For
instance, if we jiroceed upon the view that the lauguajje referred to
relates to the first four questions only, and those should be decided
against the United States, it will be necessary for the Trilumal to con-
sider what regulations are necessary; but, should the decision of the
fifth question be at the Siinie time in favor of the United States, the
conclusion upon such consideration might be that no regnlaticuis were
in fact necessary. Sucli would perliaps 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 ])rotect 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 concurient regulations would become necessary.
On the other haiul, if the language referred to be taken to include
all of the five (luestions, the fifth question being regarded as one relat-
ing to Jurisdiction in the sense which 1 have indicated, the subject will
be left in such a condition that the concurrence of (Ireat Britain in
regulations will be necessary, provided the Tribunal should be of oi)in-
ion either that the United States had no])roperty interest, or that such
interest gave no right to employ force in its protection.
Tlierefore I shall not engage in any furtlu'r discussion of this ques-
tion of interpretation. It is ])ractically of no <'(inse(iuence.
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? VViiat
are tlieir requirenuMits? There are two (lualitications mentioned in the
Treaty, and tiro onlif. In the first place, they must be regulations
operative ovtuiile 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 conditi<m. The only other description that we have of
them is, thattliey shall be such as are necessari/ for the preservation of
the seals. Fitn(!ss for the acconqdishment of that end is the require-
ment, and that is an absolute requirement of these regulations. But
right there 1 am met by some intimations, in the Case and in the printed
Argument on the part of (rreat 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 recommeiKled by this Tri-
bunal. In the first place, it is intimated tliat they must be regulations
conditioned upon the consent of other nations tlum Great Britain and
the United States, and not operative until the consent of the other
powers shall be obtained. 1 am not exactly certain, but 1 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 ex])ressed in the Treaty. No such limita-
tion is expressed there; aiul 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 be a matter
of utility, of convenience, that the assent of other powers shall be
ii:
H
f
N' 1,
262
ORAL ARGUMKNT OF JAMKS f\ CAUTKR, ESQ.
fjiiined to tlicin; and tlio ])aitio8 oiigage to tiiko all ineasuros williin
tlieir power to niun that assent.
I say tlierelore, tliat not only is it not exjin'ssi'd in tlie treaty, tliat
the rej,Milations siiall he tiins eonditional, but tlnit we cannot imi>ly it;
and that the eontraiy is indeed sny^'estcd, if not absolutely required,
by the terms of the article itself.
8ena<or Moikjan. Mr. darter, if the award of this Tribunal is to be
merely tentative and not bindin{? upon the parties that have submitted
this case to the decision of these Arbitrators, why are we sittiu}? herel!
We are not diplomatists; we are not advising counsel or the particular
friends of either tiovernment.
Mr. Cartjok. That is one view, and a very proper ami important
one, having the same tendency as the view that I am now subntitting
to tlie Tribunal.
Senator INlouoAN. I do not hesitate to say on my ])art that if this
award is to be accepttMl by the resi)ective governments, or rejecteil, at
their pleasure, and is not to be an award in full force from the time it
is recorded and delivered heie, I will withdraw from this Tribunal.
Mr. Cauteu. I do not understand that there is any suggestion from
any (piarter 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 v.'hieh it suggests conditional lor
their operation upon the assent of other i)owers. It is that supi)oscd
])ositiou I am si)eaking to, 1 am sure the ground is not taken that the
award of this Tribunal may be accepted or rejected at the pleasure of
the parties. The contrary I have reason to know is conceded upon
both sides and maintained on both sides.
The Pr];sii)10NT. Of course, Mr. Charter, when you speak of other
powers, you mean other powers than (Ireat liritain and the United
States?
Mr. (./AiJTKR. Yes. There is further evidence derived from the (!or-
resjjondence 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 ])arties, although its phraseology was understood to be complete, a
suggestion (!anie 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 .'WJ)
of volume 1 of the Ai)pendix to the Case of the United States in a
note from Sir Julian Pauncefote to Mr. Blaine. He says:
BiMTisii Lkgation, Washhii/ton, Xovcmher i2S, 1891.
Siu: I informed tlio Miir(|iiis of fSalisbury of our proposnl to sinn tlie text of the
scviMi articles to bo inserted in the Holiriuj; Sea Arbitriitioii aureeiiient and of the
.loiiit Coimiiissioii article, as settled in tlio diplomatic corresiioiidence, in order to
record the iirogresM made iip to tiie pri^scnt time in the nej^otiatiou.
Lord Salinbiiry eiit irely approves of lliat proposal, bnt be has instructed mo, before
Riffniii}^, to address a note to you for the jmrpose of obviatiiiji; any doubts wblch
might hereafter arise as to the meaning and ett'eet of article 6, which is as follows:
(The Arbitrators will remember that the present article 7 stood orig-
inally as article 6.)
If the deteriiiiiiation of the foregoing questions as to the exclusive jurisdiction of
the Unite<l States shall leave the suliject in such position that the concurrence of
Great Britain is necessary to the establishment of regulations U)v the proper })rotec-
tion and the preservation of the fur-seal in or habitually resorting to the Hehring
Sea, the Arbitrators shall then determine what concurrent regulations outside the
jnrisdictionjil limits of the resjiective governmciuts 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 ARGUMKNT OF JAMES C. CARTER, ESQ.
268
be Idid bofore them, with Hiich otlwr ovideiico as I'itlicr (Jovernnioiit iniiv Hiiliinit.
'I'll*) coiiti'iictinfj ])(i\verH rui'tlioriinire agree to cooperate in 8e(MiriniL; the iuliiuMion of
otlier powers to Huch rogiilatious.
Lord Salisbury desires to make tlio following two reservations on the
above article:
His lonlHliip nndorstandrt, lirst, thnt the iipccssit y of iiny rej^iilatioiiH \n left to tlio
Ar])itratorH, uh well i>H tlin iiatiirti of those rcj;iilalioiis, if tlui iieceHsity is in their
Jnd^nicnlr proved; secondly, that tlu' K'^' atiims will not litsconie ohliKitoi'.v oil
(ircitt Itritain ninl the United ;"'ateH until tliey liiiV(< heen accepted by the other
maritime powers, ()therwis(^ as liis jdidsiii)) oliserves, the two (iovennnents would
be simply handin<j over to otluirs tlie ri;;lit of exterminatinj; the seals.
I have no donht that yon will have no dillicnlty in eoncnrrinji in the above Teaer-
vations, and snlycct thereto I shall he prepared to sign the articles as [>r(>)iosed.
1 have, etc.,
Julian Painckkoti".
A copy of tliat note was fnrnishod to Mr. Blaine, and his answer is
found on the foliowinf'" pajiC, .340:
Dki-aiumknt ok Statk, Wafih\ni}ton, Novemher S7, IS'Jl.
Siu: In the early ]iart of last week you furiiislmd the exact points which had
been agreed njion Inr arbitration in tlu! matter of the Rehring Sea neg'>tiation. You
called later and corrected the langnagft which introduced the agreement. In fact, the
two copies framed were taken entirely from your minutes. It was tlone wi'h a view
that yon and 1 should sigu them, and thus authcuticatrf the points for the Arbitra-
tors to consider.
You inform me now that Lord Salisbury asks to make two reservat'ous in the
sixth article. His lirst reservation is that " the necessity of any regulation is left
to the Arbitrators, as well as the natiire of those regulations if the necessity is
in their judgment i)roved."
What reason has Lord Salisbury for alt(!ring the text of the article to which he
bail agreedf It is to be* presumed that if regulations are nee<led they will be made.
If they are not needed IIks arbitrators will not make them. The agreement leaves
the arbitrators free uj)on that point. The lirst reservation, therefore, has no speci.l
nnraning.
The second reservation which Lord Salisbury makes is that " the regulations shall
not become obligatory on (Jrcat Britain and the United States until they have been
accei)ted 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 docs he iiwixn that sealing shall be resumed the 1st of
May next and that we shall proceed as before the Arbitration until the regulations
have been accepted by the other "maritime powers?"
''Maritime powers" may mean one thing or another. Lord Salisbury did not say
the principal maritime powers. France, Spain, Portugal, Italy, Austria, Turkey,
Russia, Germany, Sweden, Holland, Helgium, are all maritime jiowers in the sense
that they maintain a navy, great or small. In like mainuu', Hra/cil, the Argentine
Confederation, Chile, Peru, Mexico, ami .I.apan are maritime ])owers. It would
re(]uire a long time, three years at least, to get the assent of all these powers. Mr.
Bayard, on the 19th of August, \><X~, addressed Great Britain, Germany, France,
Russia, Sweden and Norway, and Ja])an with a view to securing some regulations in
regard to the seal in Behring Sea. France, Jai)au, and Russia rejilied with languid
imlitference. Great Britain never replied in writing. Germany did not reply at all.
Sweden and Norway said the matter was of no interest to Ihem, Thus it will be
again. Such a proposition will ])ostpoue the matter indelinitely.
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
ailheres to every point of agreement which has been nnide between the two powers,
according to the text which you furnished. He will regret if liord 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 ])arties wl.o iuive no direct interest in the seal fisheries, or that
the settlement shall be postponed until those third parties see fit to act.
\ have, etc.,
James Q. Blaine.
Lord Siilisbnry was not quite satisfied with that answer; and another
letter, or other letters, were written in reference to it, and responses
i:
( f
2C4
ORAL ARGUMENT OP .lAMHS (!. CAKTEK, EH(J.
more or less to tlio same crtect were mndo on the part of Mr, TilaiDe,
namely, tliat tlie I'residcMit (uiuM not assent to any siicli alteration of
tin' treaty; and in view of that nnwiliiii};;ness on tiie part of the United
States, Lord Saiishnry withdrew his reqn«'st and a(h)i)ted the text of
the treiity as it stood, and, I think 1 may say, adopt«'d the views of Mr.
Blaine in referenee to it. That ae<'eptance of the treaty as it stood
will be found on page 'Mr> in the note of Sir Jnlian to Mr. IMaine:
ItuniHn Lkoai ION, WttHhlmjion, Ikccinher 17, 1891.
Sin: I have the honor to ini'oriii yon Mint I coiivoyiMl to thu MiirfpiiH of Siilinlniry
Ity teleKniiii the Hiil)t)tiiiicu of your note of tliu I Itli iuHlant rt>N|ifi'tiiiK tliu Hixtli
article of tlie ])ropoH('il HehrinK Sua Arliil ration aK!'c(Miu>nt, and that I have received
a re])Iy from his lonlNhip in the foHowin^ KctiHe:
Lord Salishnry is afraid that, owing to the ditlicnlfics incident to telograjthic
eoinnninicarionH, lie haH been iiniK^rfectly understood by tlic President. He consented,
at the Tresident's re<|nest, to defer lor the present all further discimHion as to what
couFHc the two<iuvernnientH hIioiiUI follow in the event of the regulations ))rcNcrihed
hy the Arbitrators being cvailcd by n change of Hag. It wsw necessary that in doing
so he should guard himself against the su|i]i()sition that by such consent ho had
narrowed the rights of the contending parties or of the Arbitrators under the
ugrcenient.
IJut in the communication which was enihodied in my note of the 11th instant, liis
lordship made no reservation, as the President seems to think, nor wa» any siudi
word used. A reservation would not bo valid unless assented to hy the other side,
and no such assent was asked for. Lord .Salisbury entirely agrees with the I'resident
in his objection to any point being siibniilted to the Arl)itrator8 which is not
embraced in the agreement; and, in conclusion, his lordship authorizes me to sigu
the articles of the Arbitration agreement, as jiroposed, at the close of your note
under reply, whenever you may bo willing to do so.
I have, etc., ' Julian Paunckfote.
Of conrse that i)nts that question at rest.
Sir CiiAiiLES ItussELL. The view of the Government of (ireat
Britain, tmd the point which we intend to support is in the letter of
the 11th of Deeember, 1891.
Mr. Carter. Would you like to have that read?
Sir Charles Kussell. Ye.s, if you kindly would. It is in the
seeond parasraph on page 344.
Mr. Carter. The letter is short. It is from Sir Julian to Mr.
Blaine :
IJuiTiSH Lkgation, IVashiiif/ion, December 11, 1S91.
SiK: I have the honor to inform you that I telegraphed to the Maninis of Salisl)nry
the substance of your note of yesterday reapiicting the sixth article of the ])ro])08ed
iiehring Sea Arbitratitm agreement, and that I have received a reply from his lord-
ship to the following etVect: In view of the strong opinion of the I'resident, reiter-
ated in your note of yesterday, that the danger apjireheiided by Lord Salisbury, and
ex])lained in my note of the 8th instant, is too remote to Justify the delay which
might be incurred by guarding against it now, liis lordshii) will yield to the Presi-
dent's apjieal and not press for further discussion at this stage.
Her Majestys (Toveriiment 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 sucti
conditions to the regulations as tliey may a priori judge to bo necessary and just to
the two powers, in view of the ditliculty pointed out.
With the above observations Lord Salislinry has authorized me to sign tiic toxt of
the seven articles and of the .Joint Commission article referred to in my note of the
23d ultimo, .and it will give nie 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 AUOIIMILNT OF JAMES C. CAUTUIl, ESQ.
2G5
DKPAUr.MKST (»!■ Statk, l\'(i>iliiii(it(in, Ih'ivmhvr /•/, ISUI.
Rli<: T linvo tlio Iiotior to iiilviHc yon tliiit I Hiil)iiiitt<'<l yoiir iioto nf tin; 11th iiistiint
to tlii> I'l'fHiilttiit. At'tur iiiiitni't iloiilx-nitioii \w Iuih iiistnii'tnl iii<> to Niiy tiiat iio
olijuctN to Ijoril Sulisliiiry'H nijikiii;; any n^Morviilioii iit all, and tiiiit \w ran not yii^id
to him thoi'iKh( toai>|ical to tho Arhitrators lodtM'iili' any point not cniliraccd in tho
artirlcH of Arhitration. Tlit^ TrcHidtMit docs not, adioit tliat Loi'd Salislniry can
rcHorvo tilt) ri^lit in any way to allVct thf drrinion of tim Aildtiiitors. We nndtT-
Htitnd that tli)^ Arhitiation \h to pcoommI on tlio smon poiiilH which iin- contained in
the iiiticloH wlii<'h you iiud 1 curtily wero tlie very jioints aj^iccd iipou hy tho two
Uovt-rnnicntH.
For l.onl SaliMltnry to chvini t!io rinht to snhniit tliin new i)oiiit to tho Arhitnitors
Ih to entirely chiin^e tho Ai'hitralion. TIh^ rresident niiuht in like inanin-r Hulnnit
Bflveral qneHtionH to tho Arliitralors. and tlins ciilar.i.ai the Huhjcct to snnh an extent
that it wonld not bo tho sanu) arhitiation to which we have unreod. I'lio I'roHidcnt
elainiH the ri^ht to havi^ the hi^voii ]>ointH arldtiatod and i'e.s])ectt'iilly insiNtH that
Lord Salisbury shall not ('liaii;ro thoir nii'aniiiK in an> itarticnlar. Tlio iiiattcrs to be
arbitrated innst bo ilistinctly understood liclbre tiii- Arbitrators are choson. And
after an arbitiiitiou w agreed to neither of the puitiuH can eiilargo or conlraot its
Hcope.
I am ijrejiared now, as 1 have been lieretoforo, to Migi* tho articles of ay,reeiiient
without any rcHervation whatever, antl lor that inirposo I shall bo H;lad to liavt^ you
call at the State Dupartuieiit on Wodiiosday tho IGlh iimtant, at 11 o'clock a. in.
I have, etc.,
Jamks G. Hlaink.
The President. Mr. Carter, how wonhl you construe the seven
points that weie releiTed to in tliis letter?
Mr. Carter. Do you uiean this ]iliraso, "The President ehiiiiis tiio
rijjht to have the seven points arbitratetl", etc.
Tlie President. Yes. 1 snppose it means the live regulations and
the joint connnission article.
Mr. Cabter. Yes.
The President. You have no partictilar construction of that ? There
were six articles in the original treaty.
Mr. Phelps. The seventh is the question of damages.
Mr. Carter. Yes; the seventli is the (|uestion of damages. The
letters I have read seem to put this matter at rest; for the letter of Sir
Julian of December 17th aeiiuiesci^s in the view of Mr. lUaine, in his
letter of the 14th, which I have just read. It was evidently regarded
by botli sides that this seventh article of the treaty, upon its face, upon
ajust interpretati«ui of the language embraced by it, <lid not contem-
plate that the regulations should be (sonditioned upon tho acquiestienco
of other ])owers.
It was upon that assumption that liord Salisbury wished to have an
understanding tacked on to it to the elfect that tiiey sl;ould be so con-
ditioned. That was refused. He then wished to reserve tho right to
jirgue before the Arbitrators that the regulations should be so coiuli-
tioned. Even that is objected to; ami the treaty is eventually sigsied
ui)on 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 <iuestiou whether it was expedient that the regulations
should be conditioned upon the assent of other powers, it sliould 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 w^as obtained ? We know tlie delays
incident to diplomatic negotiations; and there would be no good reason
to sui)pose that this universal assent could be obtained in less than
three or Ave years; and in that time the seals would be gone. There-
1^
266
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
9 :' .
fore, any regulations upon the subject of preserving the seals whi(!h
will have any elhciency to that end must be regulations immediately
operative so far as the two Governments are concerned.
And pracjtically no diilicnlty will arise if that view is acted u]>on.
If pelagic sealing is prohibited by Great Britain and the United States,
no vessel under either of their flags can make its appearance upon tlie
seas for that purpose; and I venture to say that no other nation in tlie
world, after regulations of that charjicter fran>ed by a Tribunal such as
this, would allow its flag to be used for any such ])urpose. The public
sentiment of mankind, authoritatively decuvrcd, by a tribunal of this
character, composed of representatives selected from diflerent nations,
would be everywhere respected. There is no good reason to suppose
that theie would be a" attempt to violate it from any (piarter; and if
there were any, it would be one which could be, U]»()n very Arm grounds
resisted, and the violations would not be frecjuently repeated. So I
conclude that there is no such limitation to be put ui)ou the regulations
which are to be recomnieiidcd by the Arbitrators.
There is another jwint 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. 1 do not
know whether that will be persisted in. It may be. The grouiul sug-
gested is that the whole subject of original controversy was the autluu'-
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-
lined to Bering Sea, the scope of the regulations should be in like
manner limii'^d, and should not pass those boundaries. I have to say
that construction cannot be nuiintained. 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 "oKts'(V/e the jurisdictional limits
of the respective Governments are necessary, and over wh<(t 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 iuterijretation, therefore, if it is to be accepted at all, nuist be
accepted upon the ground that there is some implication which recjuiied
it. But are we to imply a limitation of that sort? Such a limitation
would be inconsistent with the avowed purjjose of both i)arties from
the beginning of '^liis controversy. This plan of regulatiTig pelagic
sealing through the instrumentality of an Arbitration was originally tlie
suggestion of G; eat Jiritain; an(l 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 Hir Julian Pauncefote; and at :nery stage of this con-
troversy, it has been the avowal of those wlio lepresentedGreat Britain
that it was her supreme desire that this race of seals should be pre-
served and its extermination ])revented. It would be, as it seems to
nu', an imputation upon the sincerity of (Jreat IJritain to say that her
real intention was to extend this protection only in iicring Sea, and
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
•267
tlint if the fact should apjx'ar that the i-ace would be exterminated
unless protection were extoiidcd to them in tlie Nortli Pacific Ocean as
well, Great Ihitaiu would, under tiiose circunistaiiccs, be wiliiu}? that
the seals should be externiinated. Can it be imputed to Great Jiritain
tliat slie intended to pieserve this race of seals only in case it could be
l)reserved by regulations operative \i])'~ix\ Bering Sea? What dirter-
ence does it make irherc the regidations should be operativef If tlie
iuii)ortaiit point be tlnit the seals should be preserved for the benefit of
mankind, then they should be ])reserved by regulations extending over
any seas where Great Britain and the United States can make them
operative; and of cour-c they can give them operation all over the
world so far as they tlicmselves are concciiKMl,
The PriosidKjN r. Outside tins tcrritoi-ial wafers.
Mr. Cartku. Yes. Of course not in tlic tcrritoii;.i 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 ojK'ra-
tive upon the J^orth Pacific are nccrssary, I say, it wouhl hv imjiuting
to Great Britain a piece of insincerity to say tliat, 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 lier intention to pi'escrv(! tlie lace of seiils,
she iiuist desire that they shall be preserved by legulations which will
be efTlcient to that end, whether they are oi)erative in the Bering Sea
alone, or whetlier they are operative in the North Pacitic as well.
But that then! was any such notion as that entertained l»y the parties
to the treaty is entirely inconsistent with their views as expressed in
the diplomatic correspondence, i refer to the draft ''(mvention sub-
mitted by Sir Julian PaiuKelbte, which will be found in Volume I,
United States Appendix, ])age 311. The lifth article of that is as fol-
lows:
A conimission of four experts (tliat iw. a. commission of cxjici'tHalionld lieniipointivl).
Two lumiiiiatcd by cucli (iovcrniiu'iit, ami a cliainiiaii iiomiiiaifd l)y tlu* aiiiitra-
tors, if appointed, and, if not, by tlie aforesaid conunission, shall examine "nd report
on the followinji; question :
What international arrangements, if any, botween (Jreat Britain and tlie United
States and Russia or any otlier power, iir<; necessary for the purpose of jiresorving
the fur-seal race in the Jiortheru P.iciiic ' )eeau frctni (•xtermination?
That is the first suggestioi' of ;i commission of expeits — of a Tribunal,
to contrive measures fo: ihe preservation of the fur-seals. It comes
from Great Britain, and the suggestion is not of measures conlined to
Bering Sea at all, but of measrres operative upon the Xoitli Pacific
Ocean as well, aiul designed to protect not only the seals belonging to
the Pribilof 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 Paun<!ef'ote also, at a later period, in a letter written
on the 11th of June, ISftl, when the tiegotiations in relation to the
Treaty were in progress, and had nearly been brojight to a conclusion,
says — I rea<l from the tliird paragraph on page .'Uo:
Nevertheless, in view of tlu; nrj^eney of the ease, his Lordship —
(His Lordshij), of course, is Lord Salisbury.)
is disposed to authorize me to si^n the ajji'ccment in the [irecise terms fcrmnlated
in your note of Jiini! !), provided (lie (|iiesti(m of a joint commission be not left in
donbt and that yonr ({overnment will ^ive an assurance in some form that slie will
concur in a refere:lc(^ to a Joint commissimi to ascertain what iiermi.iiciit lueasiuen
ar(( necessary for the preservation of the fur-seal specie" iu the Northern I'acdiio
Ocoau.
m
268
ORAL ARGUMENT OF JAMES C. CAKTKR, ESQ.
Tlicrc iiii^ain the (lOvoriimont of (Iroat Uritaiii is ])r('ssin<r tlio (lov-
cniiiKMit of the l.'iiitod States t,; assent to its idea of tlie coiistitutioii
of a coiiunissioii for the, i)ui])ose of iiialdiijj;' iiKjitiiies us to what pro-
tective refill la tioi IS shall be necessary to preserve the raee of seals in
the North Pacific Ocean, no matter whert^ they helony.
iMr. Wharton's answer to this was written tiie same <lay:
Dki'akt.mknt ok Statk, Wathinijluii, June 11, 1891.
Siu: I liavo tlio lioiior to acknowhMljrc tlic rccdipfc of your iioto of today's date,
and ill r('])ly [ am directed by the l're8iileiit to nay tliat tlie ( ioveriiiiieiit of tli(! I'liitcd
States, iecoiiiiiy,iiij>; the. fact tliat lull and adeipiatci nieaNUics for tlu; ]irotcctioii of
sea] life should enihrace the whole of I'lehrinjj Sea, and ]tortion,s cd' the Xorth I'acitic
Oi'can, will lime no liesitancy in a<i;reoini;', in connection with Her Majesty's (iovern-
inent, to the, aiipointMu^nt of a Joint conmiissiou to aisceitain what permanent incas-
nres are n«!cessary foi' the preservation of the seal species in the waters referred to,
such an ai^rcemcul to he signed sininltaneonsly with the con\<'ntion lor arbitration,
and to he without jjnjndico to the finestions to Xw siihniitted to the arbitrators.
There is the ilrst direct and explicit assent of the United States jEfiven
to the i)roJect of the constitntion of a Joint connnissi<m for the purpose
of ascertainin;;- wiiat le^ulations are necessary; and that assent con-
tains the exi)licit statenient that the measures were supposed to be
necessary not only in IJerint!," Sea, but in the North Pacific.
On the lotli of January, l.Si>2, which was after the articles of the
Treaty luid been drawn up and signed — 1 am now reading? from the
ltei)ort of the JJritish Commissioners, page 7. It was signed by the
paities in Jieccmber.
Tlie Prksidicnt. I think not. ^njatilication advised by Senate
March 29th: ratified by the President April 22nd: and ratifications
exchanged 31 ay 7th."
Mr. A ustice Ua klan. Mr. Carter means that the former articles which
w^ent into the Treaty, and the articles about the Commissiou were
signed the IStli of December.
Mr. Cautjcr. The two agreements signed by the diplomatic repre-
sentatives of the ])arties, namely, the agreement for tlie arbitration,
an<l the agreement for the ai)pointment of the Joint (jominission, were
signed J)ccembei' ISth. and you will remember that the Commissioners
were actually appointe<l before the Treaty was finally ratified. Lord
Salisbury on the b'tth of January, lSi)2, addresses a letter of instruc-
tions to the British Commissioners. I read from about the middle of
that letter. It is the second enclosure referred to in the preliminary
l>art of the report :
Yon will observe that it is intended that the Reiiort of the Joint Commissioners
shall embrace reconnnendat ions as to all me.isiires tliat should be a(lo])ted for the
])reservation of .seal life. For this jinrpose, it will be necessary to consider what
h'e,!:;Mlations may seem advisable, wliether within the Jurisdictional limits of the
I'nited States and (laiiada. or outside those limits. Tlie l{ej;nlations which the Coin-
niissiotuirs may r(!comiiiend for adoption within the re,si)ectiv(^ Jiirisilictions of the
two countries will, of course, be matter for the cousider.il ion of tin* respective
(iovernments, while the Retjulations alfecl ini; \n aters outside the territorial limits
will have to be considt^red under clause (i of the Arbitration AKi'ecuient iu tlu! event
of a decision bcint;' ijiveu by the Arliitrators aj^ainst the claim (d' exclusive jurisdic-
tion i)ut forward (Ui behalf ol the I'nited States.
The h'())ort is to l)e jnesented in the Ilrst instance to th(! two (JovernnientB for
tlw'ir considcral ioii, and is subse(|uently to be laid by those (iovernments before the
Arl)itrators to assist them in deti'iiuininLi; the more restricted (|uestion as to wh.'it,
if any, U'ejiulalimis are essential for the protcclion of the fur-beariiijjf seals outside
the territorial Jurisdiction of the two countries.
Seuiitor MoRdAN. Mr. Carter, have you that clause 0 before you?
Mr. (Ui{Ti;r. Of the Treaty?
Si'iiafor M(»R(iAN. No: it does not say the Tietify, as I understand.
It is one of those iigrecments. 1 wanted lo know whcflnn- clause (J
mentioned in that letter wtis identical with clause 7 of the Treaty?
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
269
':$ \
iiits ft)r
'lH't' tlio
whiit,
mtsido
Mr. Oartku, Oil yes; it was substantially identical with the clause
mentioned in the Treaty.
iSenator .MomiAX. Is it known at whose iustauce that sixth clause
was nuide article Vll of the Treaty ?
Mr. (Jakteu. When they came to put the agreement for the arbitra-
tion and the a};ieenient for the appointment of the Joint commission
into one document, which is the Treaty, then it became necessary to
make that clianj>e. Tlie consolidation of the two instruments made
that change necessary, as 1 suppctse.
i\Ir. FosTEi;. The iirst live ([ucstions are in article VI of the Treaty,
and the matter of re.iiuhitions, foll(»\vin<;', became article VII.
The I'RKsiDEN'J'. (ieneral Foster, perliaps yo'i can tell us. There
was aremodelinji' of the Treaty after this isih of December, I supposef
Mr. FosTEiJ. When the negotiators came to (complete the Treaty,
they consolidated these two agreements; and in nu ubering the articles,
the first live (piestions became article VI of the Treaty, and tlu^ ajircui-
nient concerning regulaiions, following, became arti(;le VII of tlie
Treaty. It was simply an enumeration of the articles of the Treaty,
and that had ivccyme Article VII.
The PiJESiDJOJST. Tliat was after December LSthH
Mr. Foster. Ves.
The Fl{EsiJ:>ENT. I>ut there was no substantial change in the text?
Mr. '"''^^TER. There was no change wliatever in the language, simply
a chaiiu'' !n the numbering of tlie articles.
Mr. CiTER. J have read from (U-cuments showing what the inter-
pretatu)n of Great Hriiain was in this particular. 1 now call attenti(»n
to a document showing the interpretation of tlie United States, and
that is in the apjMtintment of the Commissicucrs under the Treaty, on
l»ag(^ 311 of the Case of the United States. The Commissioners there
refer to the letter of the Secretary of State appointing them:
SiK: III your letter of .Inly 10, 18'.U, recfivi'it liy us in 8;iii I'minisco on tlio Kith,
iilter rcfcrrinji to tin- diploniiitic coriti-ovcrsy in'iHliiiii' brtwccn tlic I'liited Sliiti'.s anil
(ircat JU'itMin in respect to the kiliinii: of fur steals by iiritisli sulijects and vessels,
to tho causes wliieli led n]i to t Ills .•uni roversy, and to some id' the iiioiiosilions wliicll
had at thatdato lioen mutually ayreed u]iou, you inforiu us tliat th« I'residenl has
boeii i)leased to a|)i»oint us tn )no(!eed to tlic I'ribilof Islands and to make certain
invosti^aiions of the facts relati\e to seiil life with a view to ascertain iuj;' what pcr-
nianent. measures are necessary for the preservation of the fur-seal in Ijehring Sua
and the North- I'aeific Oeoan.
The Tribunal here took a recess. |
On I'casseinbling, Mr. Carter resumed his argument. |
Mr. Carter. Another evidence, Mr. Fresident, tending to show that
in the contemplation of the Treaty the regulations were not to be lim-
ited to IJeriiig Sea. is found in tlw^ change of form of the sixth
(pu'stion. As originally projiosrd it w.s in this languag*'; 1 read fi'oni
page 28() of the tirst volume of the ^Vppcndix to lIic liiited States
Case:
Sixth. If the determination of the fore'i'oiii',r iinestii.ns shall U-it\f the sulijeet in
such posilion that the concurrence of (ireat tUilaiii is necessai'y i» pf-^'-'iibiiif; roiiu-
lations for the kiiliim' of the liir seal in any i»art of liu^ waters of Jivhfiii>r Sea, thou
it shall he further determined, etc., etc.
You will observe there that the language of the regulation here pro-
l)osed is: ''Uilling of the fur seals in any part of the waters of Bering
Sea'', giving some ground for a suggcsti(»n that the Kegidations were
to be conlineil lo Bering Sea; but. alter the correspondence which I
liave referred to, and in which it was iudicated u|M)n both sides that
there was a necessity that the liegulatioas should extend outside lit)-
I!
ill
i!
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270
OUAL ARGUMENT OF JAMES C. CARTER, ESQ.
riiis Sea, or that tliore iiiij^flit be a necessity for an extension outside of
tiiat Sea, tl»e form (»f tiiis Ar) iele was changed; and on i)ase ." ll> of the
same voliiine will be found the statement of it in its chanfjed form in
the ]Sote from Mr. Wharton to 8ir Julian I'auncefote (quoting):
(6) If tlie (Ictorminntiou of fbo foref^oiiij^qiu^stioiia as to tlio exclusive jurisdiction
of tbc IJuited States sliail leavo tlm siiUJoct in siidi position tliut the coiicnrrfiice of
Great Britain is necessary to tlic establisliiuent of re^jiilations i'or the proper protec-
tion and tlie preservation of the fur seal in, or habitually resorting to, the Bebrin{j;
Sea, the arbitrators siiiili th(!n determine, etc., etc.
The words, "or habitually re.sorting 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 onler to show that the Kegulations onglit not to be limited
to Bering Sea, but that they should be extended to the North Pacific,
I point to the lieport of the British Commissioners. They think they
should be oi)erative on the Pacific Ocean and not confined to Bering-
Sea. The suggestion upon pelagic sealing wliich they themselves pre-
sent in their Report and which is made part of the British Case is that
it is necessary that the ]>rohibitions 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
l!lth of A])ril, 18!)J — volume 3, A]»pendix to the British Case, United
States, No. 3 (1>S!>2), page 5. Mr. ilawkins says:
In consequence of the nei^otiations beinj^ carried on between the United States
Government and our own to lirinj;; about a satisfactory settlement of the liebrinji;'s
Sea Seal Fishery ([uestion, 1 beu to offer you the following facts, trusting tliey may
bt! u.seful l<) you as emanating froui one with a x>ractical knowledge extending over
a jieriod of eighteen years.
I also inclose herewith a cutting fiom the "Daily Chronicle" of tbe above date,
Avliitdi induces mo to take this liberty, supjiosing tlie statement therein detailed to
be correct.
Since about the year 1885 we have received in this country largo numbers of seal-
skins known in the trade as north-west coast skins, the same having been taken in
tlie open sea, and, from aii])oaraiK'es that are unmistakalde to the initiatt^d, are
exclusively the skins of female seals i)regnant; these are all shot, and I have Iteeu
informed that for every skin recovered live or six are lost through sinking when
stiaudc by the siiot; this wholesab^ s]au!;liter of the i'euuiles will, in a short time,
bring about Uu; extermination of the seal in that district if not arrested.
That letter was referred by Lord Salisbury to the Canadian Govern-
ment, and a llci»<)rt was made to the Privy ('onncil of that Government,
which is found on page 75 of the same part of the British Ai)pendix
(reading) :
lieport of a CommHice of the llonourahlc the Privji Council, approved hy Ma Excellency
the Govenwr-dexcralin Cumtcil on the 27 th June, ISOl,
The C\)mmitt»!0 of the Privy Council liave had under consideration certain papers
from tilt* Colonial OtHiee on the subject of the seal fishery in ISehring's Sea.
'i'lie Minister of Marine and fisheries, to whom tins matter was referred, (d)serve8
that Mr. Ilawkins states "since about the year 18N,"> we have reeeivi'tl in this country
(England) large numbers of se.al-skins, known in tlu^ trade as the north-west coast
skins, the same having been taken in the. o]»c>n sea, and, from appearances that are
nnmistakabie to the initiated, are exclusively the skins of female seals )>regnant;
these ; re all shot. au<l I liave been informed that for every skin recovered five or six
are lost through sinking when siiiuk by the shot. . ."
Two paragraphs further down the Eeport proceeds (reading again):
The Minister sub.nits that the testimony ])roduced by Mr. Hawkins in this connec-
tion is (jiiite in accor<l with the iulbi'm.it ion hitherto olitaiued, and is most valuable
in support of the contisntiou of Cauuda. It liao been previously pointed out that
r.\\n)\
OUAL ARGUM1:NT of JAMES C. CARTER, ESQ.
271
iiltliont;!! f^rcat Htress liad Ixmui p]ii<!t><l hy tho United StntoM (lovoriinuMit on tho
iillo»('d iKM'cssity lor piohiltitiii;; ju'liisijic seiiliiij; in the ISchrinj^'s .Sea, yet no uttt'iniit
Lad «;vor been made by tbat (iovei nnient for an aininK<'iiieMt to curtail Hiiiiilar opera-
tions aloiijc tlie eoast iireviuus to tlie entry <»f' seals into that ,s(>a.
In an atti^inpt to vindicate tlu; nuthod.sof the lessees of the seal islands, Mr. Haw-
kins ])rocecds: "We, on tin' otluT hainl, during my experience have had annually
larffc nundjiTs of seal-skins from Alaska, and also from tho Copper Islands, wliieh
are killed by beinf; clubbi'd on lantl, and are selected with Jiid^jment, boiuf; tho skins
of yoinif? male seals: the older li;;htiiii; or breeding males are Hpare,(l."
This is another presentation of the case of the United States Government for tho
prohibiting of every other character of sealiii}! but that adopted by the lessees, so
frequently combated by your Excellency's advisers. While tho Minister of Marine
and Fisheries dot^s not deem it necessary to dwell at any length upon tho i)oint, ho
■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 bo acting on the Keports of their Agents.
Omitting the next paragraph, I quote again:
The Minister submits that whatever significance Mr. Hawkins' statement may have
U]ton tho abstract question of the protection of seal lii.j in the Pacitic waters, it can
have but little, if any, on the controversy between Great Britain and the United
States, as ilie (ivil complained of, oven if as great as alleged, occurs outside the dis-
l)nte(l iirea, as ho himself implies in his reference to tho " north-west coast skins."
Therefore, it appear.s from this Canadian evidence that a danger, and
a ]»rin('ipal danger to the seals, lies outside Bering Sea, and in the
North Piicific. Now, I read to the same effect ptissages from the Iteport
of the British Commission which 1 have just referred to, page 21i, sec-
ti(m 138 ((pioting):
If certain months should be discussed as a close time for sealing .at sea, it becomes
important to in<inire which part of the season is most injurious to seal life in f)ropor-
tion to the nnmbe)' of skins secured, and to this inipiiry there can be but the one
reply, tli;it the most destructive part of the pelagic catch is that of the spring, dur-
ing \vlii(di time it includes a considerable proportion of gravid females, then com-
mencing to travel on their way north to l)ring forth their young. It is on similar
grounds and at corresponding seasons that protection is usually accorded to animals
of any kind, ;ind, apart from the fact that these seals are killed upon the high seas,
the same arguments apjdy to this as to other cases.
That represents the most destructive i)art of the pelagic <'atch to bo
in tlie spring, when gravid females are taken on their way north to tho
IslandvS. On page 2.'i, section 1-15, the same Connnissioners say:
From the foregoing review of tho various facts and cireunistances of seal life in the
North Facific, the following nuiy be stated to be the governing conditions of proper
protectiim and iiroservation :
(((.) Tho facts show that some such protection is eminently desirable, especially in
view of further ex]iaiisions of the sealing industry.
(ft.) The domestic protection here to lbr(( given to the fur-seal on the breeding islands
has at no tiuu^ been wlndly satisfactory, either in conception or in execution, and
many of its methods have now become obsolete.
(('.) M(>asures of protection to be effective must inclinio both the suminer and win-
ter homes, and the whole migratinn-riuiges of the fur-se;il, and control every place
and iill methods where or by which seals are taken or destroyed.
Again, at section 155 and subdivision of that section, which i.s to b©
found on page -5:
A close season to be provided, (\xtending from the 15th Sentember to the 1st May
in each year, during which all killing of seals shall be prohibited, with the addi-
tional provision that no sialing-vessel shall outer Ituhring Sea bolbro the 1st .Inly in
each year.
So that we .see th;it not only is there no gromid for an intcri)ietation
of the Treaty limiting the IJegnlations t(» Hciiiig Sett, but ue hiive it
lully recognized on th(^ i»iirt of Giciir Hiitain thttt ne^jossity requires
such regiihitious in the Korth I'ticilic its well as in Bering Setts
■ i
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Hi
272
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
I
Iliiviiijj treated of tlie liniitatioiis sought to bo iiu])ose(l upon tlie Tri-
bunal ill ic'spiMt to the eoiitriviuj;' of liej,'nlatioiis for the i)re.serviition
of tlie seals, i eoiiie to the real problem. What is tiie jiroblem before
this body on this branch of the subject'' It is to contrive such Keyula-
tions as are HcrcsNary for inv prencr ration of the fur-seals. Whatever
is necessary to that end niiist be recommended, no matter what it is, or
where it is operative, or what, otherwise, may bo its eifect. Whatever
measures are necessary must be adopted. It is not to be supi)oaed that
all takiiif"' of seals is to be prohibited, for that would be to deprive man-
kind of tlie benefit of the animal. We must assume that the benotit is to
be secured, and the takinj;- be so regulated as to prevent extermination.
Now the solution of that ju'oblem requires a study of the nature and
habits of the animal, the methods by which it is pursued and captured,
the ]>erils to which it is exposed, and the means which may best be
adojited to protect it against those perils. These are the things to be
considered. lUit these are the very thing^s which were taken into cou-
sidoration in the inquiry into the question of ])roiii'ity. I was obliged
to discuss them all when I was ujioii the question whether the United
States had a ])roperty 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 ])reserving the s])ecios, to award to
the United States, wiiich had a situati«j aiul a territory giving it a
natural control over the animal, the benefits of the right of proiiorty.
Substantially the same ])roblem now leturns, though in an altei'ed form;
it is the same problem which human society has bt'on 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, 1 say, is a problem ui)on wliich 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, wlio had such a control over
V'Mi iiiiimals as enabled them to secure and sup])ly for the uses of man-
kind the aniund increase while at tiie same time preserving the stock.
Mow else, can the problem be solved? How can. you preserve to man-
kind a race of domestic animals, unless you award proiierty to those
who have such a control over them that tliey can preserve or destroy
them at pleasiue? The United States has such a contiol over the fur-
seal. He comes ui)on its soil; he remains Ihere five or six months
of the year; he subjects liims<'lt' voliiiitariI\ to its power, so that it
can destroy him at once if it wislics. How can you i)reserve that race
excej)t by inducing the nation having this control, and this ])ower of
destruction to withhold tlie exercise of that power. And how can you
induce men to withhold the exercise ol such a power excei)t by award-
ing them the benelits of the right of -property? If you will allow to
them the reward of tht»ir ab>4;ineTice; if yxn\ will induce them to exer-
cise care, industry and seU-<ienial, by ass*gniiig to those (jualities their
a])propriat»* reward, tiicn you can preserve the race. Otherwise, that
]>reservation would be impossible. Thereiore. I say that the problem
of coiitnx iiig Regulations is the same iis tliat which arises in consid-
ering the qiu'stioii of property. J^>ut tlte question of projierty isdeenu'd.
for tile jMirposes of our present ■i^-r'nT'*-''^. to l)e decided adversely
to the I'liited States. That, ho\ i, uics not change the naiure
of the problem at all. If the Uuiitd States has no property right
which will eualile it tt) preserve the aiiirn:;!, ' mo must be Regulations
agreed on hy all iJoveriimen- liaving an elfecit tantamount to that of
a propeity nghr. Von nui>r |tfiniit the Unilecl States to take the
increase <rf tin? animal, luul prevent, by lU'gulations, all other nations
ORiL ARGUMENT OF JAMES C. CARTER, ESQ.
273
from interferin.£!: with the animal at all. There is no other way. You
must contrive liegulations which will bring about the same results as
would flow from tlie institution of property.
Senator Morgan. Do you regard the words "protection" and
"preservation" in the seventh Article of the Treaty as being strictly
synonymous?
Mr. Carter. "Proper protection and preservation;" — I think those
two words are, if not absolutely synonymous, very nearly so. They
were employed in order to more fully cover the notion that these seals
were to be preserved by being protected.
We cannot, in this inquiry, lose sight for an instant of what the laws
of nature are: they are the very object of our inquiry. These seals are
subject to the operation of the laws of nature. Their increase and
their decrease follow those laws with a rigid obedience; and in order
to contrive measures wliich will insure the preservation of these
animals we nuist 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 bj' the methods of pelagic sealing is
destructive or not. I have answered that question. There is not —
there cannot be — any reasonable doubt of that. It is not possible to
take females in the way and to the extent in which they are taken in
pelagic sealing without bringing about the swift destruction of the
species, even if all taking of seals on the land were prohibited. There
are two things beyond dispute: first, that the young and non-breeding
males may be taken up to a certain point without diminishing the birth-
rate; and, consequently, without diminishing the stock; and, secondly,
that the taking of any female must diminish the birth-rate pro tanto.
This conclusi(m 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 satistied 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
nuike it ju-ofitable 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 fenuile would bring forth. Of course, as
sheep can bv produced everywhere, and the market be glutted with
them, it is perfectly prop* :■ to kill ewes when the production exceeds
the demand. Hut this condition of things never occurs in the case of
seals, for the demand is always out of proportion to the sui)ply, 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
nuitter of Kcgulations? Simply that it can propose no Kti^ulation save
one; and that is an absolute i)rohibition upou the killing of seals any-
where upon the seas, restricting the killi<ig entirely to the Islands
where the rate of increase can be ascertained, where the superHnous
nuvles can be taken ind killed and thus devoted to the commerce of the
world without diminisliing the stock. Suc!i a regulation is ne(;essary,
absolutely necessary, in its entirety. If we were to propose any regu-
B S, FT XII 16
' < I
iiil
- ■ . ■ fi
■ :i.
i-i
( i
• if ;
274
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
lation at all which would permit pelaj^io sealiiifjiii any dejjroe, it would
he such a one as this — tliat pelaj;ic .sealing,' slioiild be limited tj tlie
winter months, when sealers eaiinot put to sea on a(M!ountof the stormy
and boisterous weathei-, and when the seals cannot be found. Such a
liejiulation might be satisfactory enouj^h. It would, theoretieally,
tolerate pelagic sealing, but it would, in reality, be a prohibition of the
pursuit; and it is best to say at once tiiat tiie prohil)ition should bo
made absolute, and that pelagic sealing should not be indulged in at
all, in any form, at any time, under any cinjumstances.
\Ve are, therefore, able to present no other scheme; but, perhaps, I
ought, out of courtesy to the other side, and to the JJritish (Joinmis-
sioners, to consider what has been projmsed. And I suppose we may
say that if there is a jjossible way to retain pelagic sealing in any
degree, without endang»!ring the existence of the herd — these British
Commissioners can Jin<l it out and piesent it. They have made a pro-
found study of the subject, and if the i)roblem is capable of any solu-
tion whi(;h will ineserve ix'lagic scaling at all, they must have found itr
out. And if they have; discoveied none, we may conclude that none is
possible, and, therefore, I ])ropose to sei^ what tlieir s(!lieme is. I have
cited it at page 201 of the printed Argument of the United States.
It is as follows:
ir)5. In view of the .at-tnal condition of seal life as it presents itself to ns at tlio
present time wo l)cli(!ve that llie r('(|iiisite (len-nM- of ])rote('tion would he afforded by
tiie a|i]>lieation of the foll<»win}i speeilic iiiiiitations at shon; and at sea:
(a) 'fhe niaximuiii nunilier of seals to he taken on the I'ribilof Islands to Le fixed
at r.0,000.
(h) A zone of protected waters to he established, extending to a distanec of 20
nautical miles from the islands.
' (c) A close season to be jirovided, extending from the 15th September to the Ist
May in each year, during which all killing of seals shall be ])rohil>ited, with the
additional provision that no sealing vessel shall enter Behring Sea before the Ist
July in each year.
I'A), K(!specting the<'om])ensatory feature of such six'cific regulati<nis it is believed
that a just scale of ei]uival(!ncy as lict ween shore and stsa scaling would be found,
and a complete check established against any undue diminiitiou of seals, by adopting
the following as a unit of compensatory regulation:
For each <lcerease of lfl,()()() in the number lixc^l for killing on the islands, an
increase of 10 nautical miles to be given to the width of protec^ted waters about the
islands. The niininnim number to be fixed for killing on the islands to be 10,000,
corresponding to a niaxinium width of jtroteeted waters of 00 nautical miles.
157. the above regulations re])rescnt mcasuiesat sea and ashorir stiflicicntly 0((niv-
alent for all ])ractical puri)os(!S, an<l ])rol)alily embody or ])rovide for regulations as
ap])lie(l to sealing on the higli seas as striii<;ent as would be admitted by any maritime
power, whether directly or only potentially interested.
There is the scheme. Its features are these: first, a limitation of the
killing on the islands to r)0,(lO() seals; second, a ])r()tected /one of 20
nautical miles around the islands at all times, with a juovision for
increasing that protection by an increase of 10 miles for every reduction
of 10,000 which might be made in the luunber 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 10,000 then th(^ j)rotected area W(mld be .'iO miles;
if the number killed were reduced to 30,(»00, then the area would be 40
miles; if reduced to 20,000, then the iirea would be 50 miles; if reduced
to 10,000 then the area would be extended to (50 miles in diamt'ter; and
if this sliding scale should be further extended, and killing should be
nbHolntely prohibilcd 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
shouUl be 10,000; then they propose a close season extending from the
ORAL ARGUMENT OF JAMKS C. CARTER, ESQ.
275
10,000,
of the
|o of 20
ion for
(luctiou
on the
(Is was
) nules;
I be 10
eilnced
er; and
aihl be
area of
jst that
Ishuids
loiu the
15th of September to tlie Ist of May in each year, during which all kiil-
inj>' of .seals in iiering Sea, or any where else, shall be prohibited; and
a prohibition against entering lieriug Sea before the 1st of .Inly.
Now, I have several observations to n>ake on that scheme. The first
is that it begins by a restriction <:■" the killing of seals on the islands
from 1()0,0(M> to 50,000. But tiiat, these Arbitrators have no i)0\ver to
make. The regulations they are permitted to frame must be oi)erative
outside the jurisdictional limits of the tw() Governments. They have
no authority to make any Kegulation restricting the United States
ii])on its own soil; that was never thought of by cither of the Govern-
ments when they were engaged in framing the Treaty. But the i)ro-
])osed Itegulations recpiire that the nund)er 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 u])on its own merits as a scheme for the preservation of the
seals, and assume that no objection is taken to the i)roposed reducti<ui
in the killing of seals upon the islands. How will the nnitter stand
then? At present, there are at least 160,000 seals taken every year
from this herd, ju'obably more — 100,000 on the islands and 00,000 to
70,000 in pelagic sealing, besides wliat are lost. That, it is admitted,
is ruinous. It is admitted that it involves the destruction, and probably
the speedy destruction of the herd. The proposed limitation is suj)-
posed to prevent that destructive result, that is to say, it is supposed
that it would inflict less destruction than would be elfccted by the taking
of 100,000 young males on the Islands and 00,000 or 70,000, mostly
females, npon the sea. Well, now, how many females, can safely be
taken without destroying the herd? That is the question : how nmny?
Pelagic slaughter is levelled mainly at females; the great bulk of the
pelagic catch is com])osed of females, as we know. How many can you
safely take without <lestroying the herd? That is a i>roblem to whi(!h
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 IJeport, a starting i)oint upon which to operate.
They have said, in Section GO of their Iteport, which is to be found on
page 11 :
From the circumstances above noted, the maintenaiico of seal life in tlie North
Pacific wan threatened and reduced to a critical state in ct)n.sei|ucncc of the metliods
adopted ou the Itrceding islands, wlieni the seals were drawn ujton annually to, and
even beyond, the utmost limits possible apart IVom depletion, and wln-rc, in conse-
quence of the cnlarjjed season of commercial killinjr and tlie allowance <)f " food kill-
in<f " durinjr the ciuire tinu^ in which any seals resorted to th(! islands, these animals
liad i)ra(!tically no undisturbed season of respite. At this time a now factor also
tenditii; towards decrease ai»peared in the form of "])(daj;'ic sealing."
That is to say, theii' jjosition is that, ])i'i()r to the introdu(!ti(ui of
pelagic sealing, and Avhen the herd was subject to no destruction,
excei>t such as proc^eeded 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 iutoa
eriUcal comlifion. Of course there is a point beyond which you cannot
go in the taking of young males. You nnist leave enough for the i)ur-
poscs of reproduction. What is the limit? The British Commissioners
say tlnit 100,000 is too many; the United Stafes say that they do not
think so. At the same time, it is (;onceded by the latti^' that you prob-
ably could not cany it nmcli beyond that. ISTow take the Britivsh Com-
missioners' owu view, If the held cuunot stand a draft of 100,000
ill
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276
ORAL ARGUMENT OF JAMKS C. CARTER, ESQ.
youii^" iiiiilcs, liow iiiiuiy foiiialcs ciiii safely be taktMi? Here yon have
a race <»!' i»()lyj;aiii(Mis animals, one \\\i\\v bciii};' snllicient lor twenty or
thirty lenialcs. If tiic lier<l eannot stand the, loss of 100,000 males,
surely it cannot stand the aniina! loss of L'0,00() or even 10,000 females.
On the Jhitish (_!ommi.ssionerso\vn hyjiothesis tiiat must betrue. Now,
what assuran(;e have we that, limit inj;- the catch in the nninner ]>ro-
]ios(m1, there will not continne to be taken L'0,000 and even r)0,000
iemales'J No restiiction is ]»hu;ed on the sealinj;- from tlui 1st of May
to the 15th of September, except by the i)rotected area around the
islands, and the exclusion from IJerinjn' Sea until the 1st of .Inly. How
do you know that this scheme woidd not result in thetakinji' of as many
fenndes 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, uiuler it, the d(;strueti(Mi, so far
fi'om bein;;' diminished, would be increased, because pelaf^ie sealing'
would be immensely stinuilated. One half of the supi)ly now furnisbed
by the Pribilof Islands is taken out of tlienmrket at once! Whatmust
be theelfect of that .' Why, of course, to vastly increase the price, and
ju'oportionally to add to the inducements to])ela};ic sealinj;'. We know
this Avoidd be the case, for it must be taken as certain that the fon'.e of
])elayic sealers would have been lar{>'ely increased at the inice which
skins commanded in lS!»Owhen 00,000 or 70,000 skins were taken. We
know that i)ela«ic sealinji' would still continue to increase and rapidly
im-rease, even thouj^h no Inrther stimulus slnmld be furnished in addi-
tion to what the present market lU'ice oilers. It has been rapidly
increasinji' all alonj;'. lint what will be the effect when the sui)ply from
the islands is cut down to the extent of 50,000? The world wants that
50,000, and will \r.\y a j>reat jirice for them. Under this scheme the
pelayic sealers are otfered tln^ chance of furnishiufj them at a {freat
l)rolit. It is certain that the pelagic sealers would furnish them. They
could do it with ease. All that is needed is to furnish the additional
force «»f vessels and men; and this vvill be done because it will be
highly prolitable. The time allowed is abundantly sutUcient if the
reijuisite additional force is employed.
These regulations which begin by cutting down the supi)ly of seals
from the I'ribilof Islands, which laisetheprice of sealskins in the market,
ai.'i entice capital for the employment of more men at sea — these are
])rovisions, not for the irstriction, but for the cncourayement of pelagic
sealing! That is their character upon the face of them: That is tlie
object of this sliding scale which they pro\)ose for enlarging the area
ar(uind tlu; island. For every ten thousand of reduction in the number
killed on the Islands, the Islands are to have fin additional i»rotectiou
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 tlie I'ribilof Islands
is much less expensive than by pelagic sealing, and conseipiently the
skins obtained there can be supplied to the world at a lower price.
The greater the exjiense attached to the catching of the seal, the greater
the i)i'ice, if tin; market will bear it, which it will, as the demand
exceeds the supjdy. These regulatiims will insure that pelagic sealing
Avill be carried on, and the same or a greater number will be caught;
but the ex[)ense is increased, and the con.sumer must i)ay that. You
cannot increase the price of a commodity without increasing the outlay
of the consumer.
ORAL ARGUMENT OF JAMES C. CARTER, ESQ.
277
Thei), who ia to carry out those lio},nilati()iis? Tim I must ho done by
aniUMl rruiscM's. Must thi' I'liilod Statrs 1'iiruish Ihciii. Notliiiijjc '•'^
mijf{j«'ste<l to the <;ontrary. If (Ircat liritain is to take lior sharo of tlio
expense, it would rcJiuire a very ooiisidciable force of vessels. Not
one, not two, but half ado/en at h'ast must be sent there by one, or
both, of the Ooverniiu'iits tor the ])tMi)ose <if enforciii};- tlu'se rejiula-
tions; and it would cost not JOO,(M)(), but many hundreds of tlionsands
of dollars — )>*^rhaps a million would t)e annually reciuired to beexpended
under this scheme in order to enforce these jjroliibitioiis.
And their enforcement would be most diflicult, because th(^ pelajjic
sealer has a ri}iht to be upcm the sea; the vessel lias a lijiht to Ix', there,
and it is the business of the Governnu'nts to keep it out <»f this pro-
tected area. Conjecture oidy can inlbrm us of the cost that is to be
paid, not by the consumer, but by the (lOvernnuMit; that is, by the
peojde of tlie two i)owers, and of course tlie expense would have to be
paid by taxation. ll])\\iir<ls of a million of dollars is to be exi)ended,
and for whose Ix'uelit? For the benelit of the United States? foi' the
benellt of (ireat JJritain? for the benelit of the consumers? Xo; for
the benefit solely of the pehi^iic sealers; for the benefit of those ein>iifted
in pela<4'i(! sealinfj, and in order to enable them to carry on a (hvstriu;-
tive i)ractice which will exteiminate the seals in a few years! It seems
to nu' that such a schenu' is too preposterous for serious consideration.
1 have said that these Commissioners have sednlously avoided the
real i)roblem before them, which was, to ascertain how many females
can be taken without AV(ukinjf the destruction of the herd. That is the
s(U't of problem which has been solved u]>on the islands. The question
there has always been, how many y<mn};- mah's can you take without
endangering the supply? They carry on the sealing on i)rinciples
derived from very long ex])erience, and they have come to the ConcUi-
sion that you can take 100,000 young imiles, but you must not go beyond.
A similar problem should have been solved by tlieCommissicniers: how
many females can be taken? If they had struggled with that (piestion,
the fallacy of their own solution would have been apparent. In the
first ])l{ice, 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 0,000 miglitbe
taken. From the evidence in the case, and as will be seen from the
careful and accurate examination by the American Comnn'ssioners, it
appears that 0,000 could not be taken. If you take 5,000 each year,
that number must be annually subtracted from a constanlly diminish-
ing minuend, and the decrease^ progresses in a ratio far more rapid than
the arithmetical <me. The destruction at first might peihaps 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
nnmifest. But suppose the ('onnnissioners had conelud»Ml that 5,00(>,
or 20,0{K), might be taken ; they would have been confronted by another
difiiculty equally insuperable. How could they limit the captures to
those figures? They could not limit the taking to males; there is no
method in ])elagic 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 ])robable than any ditl'erent result.
One would su])pose that in making these r(»gulations 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,
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278
ORAL ARGUMENT OP JAMKS C. CARTER, ESQ.
for it had been pressed upon tliem. Tliey Imve ventured to say, that
the taking; of females is not neeessarily injurious; they may he barren,
and then it \h not injurious. That is true. Jt would not be any dam-
age to take barren fenuiles; but wlio ean tell what females are barren,
and what are nott Nobody, except Klliott, wliose report my learned
friends very nnu-h wislied to get in evidence. Jle knows! He can tell
a barren female from others! Ho has re<'ojjnized them on the islands,
and counted them. He says there were 2r)(>,(»(K) ! liut no other man can
tell. These Commissioners were on the Islands. They <!ould 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 i>retend to so confine it.
What is their own view of taking females that are not barren? They
have expressed it thus; I read from section 80 of their report, Avhi(;his
on page 13:
80. To iiBHiime that the killing of animals of tbe female sex is in itself reprehen-
Hil)!)^ or inliimian, is to nialioan assniniition nITVr-tinir all cases wliere animals are pre-
serviMl or domesticated by man. .Most civili/.ed nations, in acrorilance with the
dictates of humanity as well as those of self-interest, make lofjislative ]>rovision for
the ]irotectiou of wild animals dnrin;; the necessary periods of hrin^in^ forth and
of rcarinK their young; but the killing of females is'nniversally 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 sjjots. [Continues reading:]
This is the case in all instances of game preservation and stock raising, and, in
th- particular exanqtle of the fur-seal, it is uiimeri<-ally demonstrable that, in main-
taining a constant total of seals, a eertain ])rt>p(irtion of femah^s should be annually
available for killing. The killing of gravid females must, however, be dei)recated
as specifically injurious, and in any measures proi>oHed fur the regulation of seal
hunting should receive special attrtntion.
What attention have they given to it here? What ]>rovisions have
they made or suggested for tlie protection of gravid females? None
whatever; and of course none can be suggested. I5ut why is the killing
of a gravid female more specifically injurious than the killing of another
female? I cannot myself perceive the difference. The two-year-old
female of to day is not gravid, but, if she is killed, the possibility of the
existence of a gravid female is prevented. You only jio.stpone the
destruction by the period of a year. The absolute amount of the injury
is almost the same, not exactly the same, but it is the same in nature,
and almost the same in amount.
Now that we see what these regulations are, how are they to bo
described? What the Treaty requires is regulations necessary for the
preservation of the fur-seal. Are </u'.sc regulations 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 inritation 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 groat j)art that
mode of taking the seals which is consistent with the preservation of the
herd, and which is agreeable, as far as the killing of animals can be made
ORAL ARGUMKNT OF JAMES C. CARTER, ESQ.
279
ajjTPeablo, to the iini)iilsos «>f huniiinity — slie asks tliein to forejfo that
and (Migajfe with her in this dostiuctive shiu{;htor njum the s«m.s! She
is made to say t<» the United States: " FJlot out from your statute-book
tliose laws whieli <le<'Iare the killiufjof female seals to be a crime; forget
those precepts of the law of luiture whii-h teach us tiiat tlie destruc-
ti«)U <d" any useful race of animals is a crime; forjjct tln>se precepts, and
come and en{;age with us in this work of destruction upon the high
seas! Come, together with us, and let us cut open the bellies of those
gravid females, Just ready to bring forth, and let their living and bleat-
ing young fall on thede<;ks! Come with us, and slaughter these nursing
mothers out at sea in search of food, and h^t their miserable offspring
perish on the sliore! Conu' with us. and let us make our decks run red
and white with <!omniingling streams of blood and milk!" Are these
the reffulationH which a great and liumaTie nation tenders to the United
States as being those to which she is willing toyiehl her eouj^irrencet
Are these the rcifuldtinns whi<*h the civilization and humanity of Europe,
seated on that bench, are exjMicted to approve?
Mr. President, I have said heretofore in the <!otirse of my argument —
an<l 1 cannot too often insist ujxmi it — that the dut}/ of preserving this
useful race of animals belongs to that people whi(!h has such a control
over them that they can take and iipidy the annual increase and benefit
of the animal to the uses of mankiiui without diminishing tlu^ stock.
It is their duty, because they alone have the poirrr to perform the task,
and because self-interest furnishes them wich a sullicient motive to
insure its performance. Nature has so linkett together duty and self-
interest as to make the gratification of the one assure the perfornianco
of the other.
The United States believed that this was its duty, and it engaged
in an effort to i)erform it. There are thos*' wiio thouglit, and who still
think, that that duty should never have been relin<|uislu>(l by the United
States, but that it sliould ' \\v performed it at all iiazards, even though
it had been obliged to meet the "three quarters of the globe in anus."
If it had engaged in its i)erforniance with the full exertion of all its
power, naval and military, and calamitous conse(iuences had resulted,
the humane sentiment of mankind — the i)nblic opinion of the world —
history, in nuiking her final award — would liave<!liarg<^d all the respon-
sibility for those calamities u|)on that nation which had refus«'d t(> bo
bound by those gre.at natural laws which ought to bo the rule governing
the intercourse between nations.
But other counsels wer<> followed; and a different <!ourse was pursued.
The United States, abominating war, viewing hostilities with a pctwer
kindred in speech and blood with unutterable dread, alwiiys inclined to
pacific measures, when a Tribunal was olfered, made up from the selected
wisdom of the world, for the determination of tlu' rectitude of their con-
tention against (ireat ISritain, could not help accepting that offer, and
thus obliged itself to forbear from any further eflbrts in enforcing its
rights, and in discharging that corresptmding duty to preserve this race
of animals which had been imposed ui>on it by its situation and by its
advantages. That duly it has relinqnishe<l; but, although the duty
has been relinquished, it has not been extinguished. It has only beea
trans/erred from the Unite<l States to others. It has been transferred
to the members of this Tribunal; and it remains for Hum to discharge
this high duty of preserving from destruction a bounty of l'rovi<lenco
designed to be a peri)etual Idessing to num. That duty is one wb'cli
it is perfectly easy t(» perform. The destruction of this race of seals is
wholly, absolutelyf 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 reguhitions tantamount to sucli an award of property,
which shall prevent any slaughter of the species on tlie 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 ne»v source of strife and contention, and
will add to the difficulties, already sufliciently 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 n.ations. You have spoken for mankind.
Mr. Carter. I am very much obliged, Mr. President.
[The Tribunal adjourned until Wednesday, May 3, 1893, at 11.30
o'clock.]
ii:-
FUH-SEAL ARRITHATION.
ORAL ARGUMENT
or
FEEDERICK R. COTJDERT, Esq.,
ON UEHALF OF THE UNITED STATES.
281
It'
i
ORAL ARGUMENT OF MR. COUDERT.
SIXTEENTH DAY.
Pauis, May .?, 7^.9.?.— 11.30 a. m.
The Tribunal ronvoned pursuant tosuljnurnment.
The PiiEsiDENT. Mr. C!()u«leit, we sue ready to hear you.
Mr. CouDEUT. May it please you, Mr. President, and nienibera of
this high Tribunal, at the close of yestertiay's proceedings, the Presi-
dent of the Tribunal in terms of grsiceful as well as kind eulogy
expressed his opinion, and I am qu'te sure the opinion of other members
of the Court, as to the chaiacter of my leai*ne<l brother's argument, and
congratulated him, as well he might, and also the Court itself, upon the
manner in which tliese most important topics have been treated; and
he especially alluded to the lofty grounds which had been assumed and
developed by him. If I niay be excused for referring ])ersonally to
myself and trying in advance to crave an«l obtain the indulgence of the
judges whom I now have the honor to address, 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
faets, 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 p.art of the case for those who follow him in the argument. To
use an expression which will be familiar to two at least of the arbi-
trators, he has preemi)ted 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.
IJut it is a comfort to rae that they cannot stand unless I now come
forward and give him some helj). I must lay the foundation upon
which the superstiucture 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 stfias. I know that they are ingenious, able and experienc^ed enough
to meet any argutiient, however sound and however excellent; but
unless this argument of my learned friend is base«l upon fact, then
indeed their <!ontentions must prevail ami all the learning and patient
industry, so lavishly bestowed upon his wo^ '^, will be in vain. Like
the house that we read of, it wouhl 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.
383
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284* ORAL AKOIIMENT OP FRKDEIMCK R. COUDEUT, ESQ.
After all, tluMi, tlioupfli my task in disnissiiij; tlic (acts «loos not pns-
aosH t\iu»v intellectual allnrenients to tliis 'I'lilnnial, or oiler it those
attractions, wlii<Oi it fonnd so coninletely in the ar;;un)ent of my
learned brother, yet i»erhai»s the utility of my task may redeem it from
any reproach that it is lacking in other respects. It is somethih;; to
be tiseful; and it will be a f^reat deal if, when 1 have closed, 1 may
confidently claim, while admittin}; that 1 have be«'n tedious, that I
have so supported by facts the arfjumeut of my friend that it has
presented tlie whole case of the United States as stronfjly as it was
]tossibIe to present it. In this case, as in every other, the niost impor-
tant part or element of the discussion must reside in the faints; and
it is satisfactory to mo to know that 1 may perhaps jjive this Court
some instra(;tion on the only subject as to wiiich I am competent to
instruct it. The facts in a case like this are like the diajjnosis of the
physi(!ian. Jlis prcsj^'iptions are of no value unless the disease is
ascertained and the condition of the ]>aticnt deternnned: then the
applicability of the remedy is readily discovered. Jt w<mld be of no
value to us, of still less value to this court, if you shouhl find that in
the abstract the arjruments of my learned friend are unanswerable, and
yet that there were no facts to which they cotdd be attached.
This is a long preface to say that 1 siiall 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
n)ake those facts so clear and so stronj; that there will be no <lifliculty
whatever in api)lyin}; the renu'dy. Tliis Tribunal knows the law. Jf
there were aiiy crevice in it that had been unexplored by their experi-
enced and active minds, a flood of li{;ht has been poured into the
darkness by my leained friend. The only incjuiry 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 Si'ems 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 (pieslion of Nclf-de/cncc of our
indnatry. That is stated, and most elaborately argued, by Mr. Phelps
in our printed argument at i)age 130 and following; ami I shall ask
your honors to jjermit 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 wo have an ijidustry — 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 ttelf-dc/dice we do not oidy mean
selfdefence in the ordinary and elementary meaning; that is to say,
an assatdt upon our i)erson8 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 niay obliterate the seals, everyone of them, that you may
encourage the i)elagic 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 with drawing
the protectiou which is the life and I may say the creation of tlie herd,
rB
ORAL AUGUMENT OP FREDEKICK R. COUDERT, ESQ. 285
itwillbeobliti'i'iitud {iraittii^iilly andcoiiitncrcially in less time than that;
ami yet even tiien the Tnited States will not siin'er a wronj; that ran
att'vrt her {jieatne.ss or her wealth in any itereeptihle <lej;ree. She «'.an
stand that assault upon her resources without impoverishing; herself or
(listressiuj; her people. That is her ^uod fortune in one sense, her mis-
fortune froai the jmrely |>rofeHsioual view of the «'ase. If the United
States were a small nation, dependent for livelihood and existenre upon
this industry which has thus been earelully cultivated for nearly a
century; if it had no resources to feed its people but that; if this were
an industry belonj^iii;; to the men who now live there and who have
been transforme«l by the benetlcent hand of the United States from
barbarism to civilization — if that were so, your sympathy would at
once go out to such a people, and y<m wouhl say that they must bo
l)rotet;ted. There must be. in the jnintiples of humanity which rejju-
late su<;h matters and underlie international law, some rule, some
]>rinciple, upon which destruction nuiy 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 <'lo<pient only through their helplessness, they appealed
to you; but I take it that when we consider this subjiict uimn 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 1 ai)pcal to you and unhesitatingly and respectfully insist that it
is your duty to i)revent 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 fo«' the purposes of commerce, for useful i)urposes
to mankind. We are raising seals on the I'ribihtf Islands as sheep are
raised in Australia, as cattle are raised in the tar west. To carry out
our purjjose we use care and self-denial; we have invested a large
capital in the industry; we h.ave never been interfered with by man
untd within a comparatively recent period. We found the people in a
state of dismal ignorance, uncared lor and unprotected, living with as
little regard to the laws of civili/ed 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 peojde — a small people, it is said by the other side, and
truly said, but yet a ])eople.
And now another industry, so called, arises — a i^ractice I would call it,
unworthy of being dignilied by the name of an industry. It is conceded
to be destructive in its etl'ects 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 i>ursuit of this 80-<!alled trade
or industry is destructive of our rights upon our islands. It is not worth
while mincing this <piestion, or trying to evade it. The industry on the
Pribilof Islands and pelagic sealing cannot co exist. You nuivst stop
the one or destroy the otlier. The (!oncurrence of the testimony will
show it. The undisputed proofs will show it; and it may be assumed
throughout, and it mus!; be assumed when this high Tribuinil 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 AROUMKNT OP FRHDKUICK R. COUDKRT, ESQ.
ititc;]lif;(Mi(;(%of ]iros(U'vatioi), or tlio pcniiission of a pnicticM conceded to
be l)nitii.l in the extreme, deinorali/.in^ t4> all those wlio are en^^aged in
it and » crime apiiiiHt nature.
L'erhapH even tliiH w<mld not be sutliciont if we stopped there. This
Hifrh Tribunal will miy: "VVMiat are your rights?" Well, in arguing
before this High Tribunal the word 'Might" is most extensive, if there
were any other Tribunal, any Tribunal of lesser dignity that could have
deti^rmined 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. Y«)u are here to declare what right is in these
cases unfetter(>d by statutes, uncontrolle<l by limited jurisdiction, view-
ing the subject from a high and lofty eminence to the end that Justice
may be done b(!t\veen the contending nations, for the benefit of the
world, if this be so, arguments drawn from statutes may be of little
avail. You will en<|uire what principles underlie all these questions,
what rules it is well for you to establish, not only for the Government
of (treat Britain and the United States in this ]>articular instance, but
rules that will operate hereafter to settle in advance the controversies
between nations, and to allow civilization to i)ursue its beneticeut
course, without tlireats, or disturbance, or violence.
As to our industry upon the islands: I have said of what it consisted.
It will appear from the t^ase — and this is an answer to a question of one
of the arbitratois ma<le 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
tiie fact that there was on the territory <:eded a valuable industry, well
settled, well recognized and undisturbed. If i)rescription means any-
thing, 1 may say that it is founded upon, ami supported by prescription.
Until within a few years the luactii'e of entering upon Bering Sea
and slaughtering the mother seals and the ]mps upon our islands was
unknown. Our title had never, that 1 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 (k)mniaiuler industry on the other, both beneliccntly and
]>eacefnlly pursued. Suddenly there «-omes a new element in the case.
The world is moving on. It cannot stop. It nuist 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.
Scunething was said, and questions were asked, about the rights of
the Indians Avho lived uimn this industry, and whether we conceded
that they liad a i)roperty 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 etl'orts to make a livelihood by spearing an oc^-asional si'al
for food were tolerated, I do not deny; that they would be tolerated to
this day as an insignificant incursion into our territory, isju'obable; but
look at the ditlereiice; it is one that slumld not be lost sight of. The
Indian ])ad(lling abtmt 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 U8(! within twenty years, the destruction is immeasurable !
If it be true that they may go on improving — if that be the word — iu
these methods of violence and destruction, why should they stop at the
ritle, or the shot-gun, and not employ dynamite? If one be admissible,
why not the other? We put the question to our friends: suppose these
intelligent and active sealers sh(mld tind that, having exhausted the
supply of seals which Providence had furnished, it was better to indulge
iu lishing with dynamite, is tbjs a prox)er m*\ iQgitimivte metUod of
ORAL ARGUMENT OP FRKDKRICK R. COUDKUT, KBQ. 287
Rcionriiif; tiHiif They Hay in tliuir aiiHwcr, '^FiHliiii); by ilyiianiito is
uitlawrnl liNliiiif;/' liy what itrinciph' and upon what reaHonhi); in it
unhiwt'ulf It is not by Honio niudia-val preiuMlunt that you ran prove
this; bucausf^ fortunately, or untbrtunatcly as you please, in those times
nuMi had not learned that tliey could bh>\v up houses in ^reat cities \Tith
a handtui of dynaniit(\ or destroy re);inientH of men, or herds of animals
by its use. Why is the a;;ency of dynamite to be deprecate<l rather
than the use of (;un-powderf Are they not both of them for all prac-
tical purposes of destruction absolutely the same; and if our seals are
to be «lestroyed lawfully to day by the use of shot pins and rities, why
may they not, by improved methods of destruction, be more surely and
speedily annihilated f
To start from a ]M)int 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 mm-h our property as thou}<:h they were sheep or calves.
8ir (^iiAKLKS liussELL. Certainly not.
Mr. CouDEBT. Well, I pave you creilit, and I take it back. I suj)-
posed that when we held the seal in our hand, I supposed that when
we slit its ear, I supposed that when we could put a brand upon it, that
it was ours, as much as if was a lamb or a ewe. Where the dittcrence
enters 1 am unable to say. I have retul the ar^untentof the other side
with interest, and I supposed that it was conceded that upon our land,
in our hands, under our flap:, in our waters, these aninnilswere as abso-
lutely our pnjperty as this book is mine. I cannot i)rove it. There are
some pro]iositions which seem self evident. This is one and I shall not
undci'take the demonstration. liut I would ask : if these seals are not
absolutely our i)roperty, whose are theyt They are not the i)roperty
of the world. They are not the ]>roperty of Great Britain: no Itritish
subject, no French citizen, no Italian subject, lU) man from any country
in the world may come u]mui that land without bein^ a trespasser, unless
by our permission. 8hall it be claimed that a mariauder upon these
islands may kill one of these seals, maydestroy one of these pups, with-
out being liable to the laws<>f the United States? 1 (ionfess it is a new
su^}i:estion 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 arc on our land and in our
hands, are absolute and exclusive. We may do with theui what we
like. To put an extreme case, suppose it were deemed important by
the United States to kill every seal ui)on those islands. What nation
in the world would have a right to interfere! What nation in the
world cimhl properly say, if we deemed it good policy, if it were advan-
tageous to us, if there were a i)rotit in it, what nation would have a
right to say, that we should not be permitted to kill them for our own
useful i)uri)<>sesf I take it tliat the best test of an exclusive proj)erty
right is the (juestion whether or not any other human being may law-
fully interfere with the exercise of sucli 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 Hag,
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 1 cjire very little whether it is a concession or not. I take
it to be i)Iainly true.
This nmch, 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 AKGIJMKNT OF FREDKUICK R. COUDERT, E8(i.
(ifW
which tlicy may be juHfly pniiiHlied. The Itritinh < 'omiuiHsinnerH,
whose work is tlio sulmtratniii of tliu case for (ireat Britain, nay that
raiiU aru (KMasioiially coiniiiittcd bncatiHe our {;uard HyHtein in inelll-
cioiit; that thuHu ^luirds aro forbidden to slioot the raidurH and that
we ou};lit to iiavo a more ellleient protectiun for our own Heals. I do
not understand tiiat even tliey, with all the ardor of their advocacy,
dispute the proposition that we have the ri{j;ht to repel rauls even by
force, but on the contrary, they accord to U8 and suggetit that we should
use tliis )>rivilcge of slaying the marauuers.
But how far, it nmy be asked, does this reasoning aft'ect the questionf
Most materially; for if you concede that the sealers caunot directlif kill
our seals, then tlie (luestion comes: May they do so indirectlyt 1 may
ajipeal 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-
di(;ted. The law orders that a certain thing shall be done or shall not
be tlone. 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
lind how they may best and most properly batHe these eftbrts at violat-
ing the spirit while respecting the letter of the law. May it be said
that if these pups upon the I'ribilof Islands are ours, we may not issue
a general edict of death against them ? If it be the fact that our power
goes thus far, may they be destroyed by others indirectlyt Here is our
property, our pup, upon our land. It is suckled by its mother, and
must perish if that mother dies. May a pirate or poaclier lie in ambush,
even, if you please, outside the three mile limit, wait until the nursing
mother has crossed that imaginary line, and then kill the pup by the
very act of killing the motlu v? What sense is there in such a doc-
trine as this? What princip ., is there to support such a view? If the
poacher, to give him a mild designation, may not attsick 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 diflicult 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 onr hands, subject to our control and is our
ju-operty, 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 1 live, do you not take away
my life; and if you may not take away the life of these young and.
heli)less 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 oi)posed to the law of all civilized luvtions. It is opposed to
the law of the United States. It is oi)posed 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 ettected 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 FKKDKRICK K. COUDERT, ESQ. 289
States, is to be examined in order to iiMfortaiii wliat tlie liiti'rnatioiiiil
law nuiy be. Is n<»t tliis common to botli countries* ]Ut not both
countries proliibit sueli praetise as we complain off ho not botli conn
tries UMHert that it is (uiminai to Itill tlie nnrsin^ niotlicr bccansc the
effect is to annihihite the thickf As my l'i-ien<l Mr. <'artcr has sai<l, it
is spending tlie capital and impoverishing the individnal. Tlie man
who spends his ca|)ital recklessly brinj^s destruction only on liimsclt';
and yet in some countries — as liere, I believe — the law benelicently
stepsin to guard the prodigal against the results of his own imprndencc
and will ii(»t allow himtos(|nander his own substance. It puts a guard
upon and about him; he can makenoyalid contracts; betakes no tinan-
cial steps which entail responsibility, l>ecanse of his disptsirion to dis
sipate the capital that he owns. Where the <Jipital is snllcrcd to perish
the whole source of happiness and prosDcrity that flows fmm its proper
use is gone.
It is claimed that these are animals /cki natunv. I do not think the
Ero])osition is helped by giving it a liatiii imnH\ (^vcii if it is consccratcii
y long usage and time. These ar w\U\ animals. !i is said, and wild
aninuds have no protection under i.u law. Tli;ii is one of rlic gionnds
taken by the other side. The other ground is tint the sea is free; that
commercial nations cannot accept the id«;i or tolerate the <'laiiii that
depredations of this kind may be infei tered with. Let us look at th«*se
claims for one moment.
In the first place, are the seals properly designated as animals ff-rtv
naturatf Perhaps the Arbitrators may have thongiit before cMinirig into
this court, that they knew something alxmt the nature of the seal ; but
any such idea, however flattering it may be to themsi'lves :ind to their
l)reconceived beliefs nmy be promjjtly dissipated in view of the c«»nt!ict
that arises the moment that we try to agree \\\w\\ what a seal really is.
If the view of our friends, as expressed by the British ('ommissioners,
is correct, the seal is one of the marvels of nature. These gentlemen
have undertaken to define the animal. It wimld be unjust to them to
give merely a synopsis of their definitions; and I propose to read from
their own work and therefrom to show what an extraordinary animal
the seal is. I am sure that you would all wish to be informed of the
nature and qualities of the animal that we are dealing with. It is well
when you are dealing with an aninuil to know what designation to •:ive it,
especially if you are a Frenehnian. '•'■JhippcUe tin vhat un vliut,'" he is
fond of saying. As to the animal under consideration, it is claimed on
the other side that it is an esuentiallii mnrine animal; that it goes upon
the land merely because its instinct tells it to go; mcrclif beeanse it is
necessary for such purposes as breeding, nursing, and raising the
young; indeed, they add, if nature did n<»t 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 (»nly
another way of saying thai Nature has incidcated into those animals cer-
tain laws necessary to their preservation, and which they nmst fulfil
under the penalty of death. Nature is severe in her punishments. .She
is inexorable. Her commands cannot be disol)eyed with impunity or
avoided by ingenuity. You may violate the comnmnds of (lod and
hope for mercy; you may transgress the laws of the .State an<l es«ape
or find indulgence and clemency; not S(» with nature, livery infrac:-
tion of her laws will be followed by retribution. Aninmis show more
wisdom than men by giving at once implicit obedience to the inevitable;
Aad all that may be ssiid, therefore, about them in this particular is that
B S, PX XII 19
290
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
they come u> these islands because tliey cannot help it. If they did
not they would i^'iish. If we repulsed them they would perish. If
they had no such place as ours — aud that is the only i>hice that they
have— the race would die.
This essentially marine animal, or pelagic animal, Uvea upon the
lau<l about ei};ht months in the year. If it <lid not live eiyht months
in the year there, notwithstanding its ju'lagicity — to take the new and
elegant expression that has been coined, if not for this case, at least
recently introduced — notwithstanding its jielagicity, it would perish;
and what is still more icmaikable, if it is born at sea it dies! It is
sometimes s])ok(']i of as a fish, but this so-called fish nmst live on land,
during a i)art at least of its existence; and if it is dei)rived of a terres-
trial abo<le it must perish from the surface of the earth and of the
water. It is a tame aninuil. It is easily taken. It is handled as
readily as a lamb. The jirocess of selection for slaughter on the islands
shows this to be true. The animals are driv(m ju'ccisely as sheep,
and apparently with more ease. These animals ^ira; wrttMro- that are
likened to Mild geese and bees and the like, are so domestic, if that
be the appropriate ex]»re.ssion, 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 kilk'd n)ay then be selected, and the rest dismissed.
I submit tliat under those ciicumsrances to call those animals ferw
nalvriv is a misnomer, (iranting, if you ])lease, 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 tiiey
animals fenv natiiraf They go to sea, it is true, but only because
there they lind their food. As one of tlie witnesses Avhose deposition
I shall read to the court in a moment has said, not only is the seal a
domestic animal, but it is one of the most profitable of domestic ani-
mals. Without going so far and, looking simply at the i-eason of the
law, I shall claim that it being established that these aninmls live <m
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
ccmrt is called u])on to administer they are not animals fercc natiira', but
must bo likened for the !>uri»ose of this discussion to doniestic animals,
raised, cultivated, protected, handled and used for beneficent purposes
by the hand of man. They do not Hy oft" as bees, which may or may
not return; and yet bees are protected so long as they luive this ani-
itiinn renrttiKli, They are not like wild geese or wild ducks. They are,
if you please, of their own kind. The seal is an animal sui generis. It
nniy be called an amphibious aninuil, though I do not know that even
that would be a Just expression. The otter has been likened to it in
this discussion ; and yet it has been said by Button that it is not correct
to (tall the otter an ai:ii)hibious animal, because ho partakes so largely
of the character of ji lund animal.
lUit 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 aninml 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, (Jrcat Britain perhaps excepted; and if it be that avo are
by our contention attempting in any way to interfere with the f'-codom
of the sea, then we aie wrong. The freedom of the sea is more impor-
tant than the life of the seal. It should not be iuterfered with. But I
ey did
sli. If
it tlicy
on the
noiiths
e\v and
it least
perish;
! It is
III land,
terres-
of the
(lied as
ishmds
sheei),
liat are
if that
landled,
; a time;
unissed.
als ferw
aniphib-
I, except
ue tliey
because
position
le seal a
!Stic ani-
n of tlie
i live on
ter part
-without
lis high
rm', but
^uiinials,
)urpose8
or may
lis ani-
ley are,
'ris. It
lat even
to it in
correct
largely
)hibious
ntent to
otection
tant to
f, owing
to any
t we are
freedom
e impor-
. But I
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 291
claim with all respect to this high Tribunal that so far from interfering
■with it, we are iiromoting and extending it; that the freedom of the sea
in the language of our (Jhaiicellor Kent is meant for "inoffensive pur-
poses," not for the purposes of licsense 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 tlie<|uestion is, when
is tliat i)roperty 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 i)erish, if their mothers are destroyed. lii one or the
other of those two cases, or nowhere, is tlie ]»ro]>erty lost. It is either
lost in the annual migration when the mothers are travelling to and
from their lioiiie ov it is lost when the mother, going out for sustenance
for herself and for her young, is killed by the ])elagic sealer. I submit
to the court that by municipal law our rigiit is everywhere recog-
nized. In JMr. rhelps' 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. 1 read from page 132:
Kvoii ii]K>n thu onliiiiiry piiiiciplcB of i]uinici|ial law, aH adiiiitiistcred iu courts of
jiiHtice, Hiieli a property would cxi»t uudur the circunmtauces stated.
The circumstances, that is, the migration of the seal and the tempo-
rary absence of the mother.
It is n {{ciioral rule, long settled iu the couinion law of Kuglaud aud America, that
where u.set'ul uuiiuals, naturally wild, have become by their owu act, or by the act
of thoHc who have subjected them to control, established iu a home tipou the laud of
such persons, to whicli the animals have an aiihnum reri'rkndi or tixed lutbit of return,
and do therefore regularly return, wliere they are nurtured, jirotected, aud made
valuable by industry aud expenditure, a title arises id the proprietors of the laud.
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 wliile temporarily absent from the terri-
tory where they belong; a title, however, which would be lost should they abandou
peruiauently 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 re(!ognize that
there are here mitigate*! forms of proi»erty. Wliat is mine is mine,
only in this case the right is subject to defeasance, and different in that
respect from other kinds of i)roperty. I (cannot lose my title to my
sh.'ep, my cow or my horse excei)t by my own act or the superior act
of a superior power; but here my title depends, to a great extent, upon
the will of the animal. The animal has an animus in this case; it has
no animus in the other. Where it is a tame animal in every sense of
the word, recognized as such by law, and subject to my control, always
and. forever, then 1 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 tliey have divested us
by their act of the property notwithstanding our intent to keep it.
Then Mr. Phelps proceeds and he Justities this assertion:
It is under this rule, the Justice of which is apparent, tluit ))roporty la admitted
in bees, iu swans aud wild geese, in pigeon.s, in (h^er, and iu many other animals
originally /e»7r«o^<ri'i', but yet capable of being partially subjected to the control of
nuiu, as is fully shown by the numerous authorities cited iu aud appended to Mr.
Carter's argument.
m
n ;
292 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
Tlio case of the seals, we submit, is stronger tban any of tliese.
There is no case that stands so close to the case of an absolutely domes-
tic animal without being, if you i>lease, in every sense a domestic animal
as that of the seal. In that particuhir it is, as 1 said nui generis. As
stated in the argument :
Their home on the American soil is not only of their own selection, but is a perma-
nent home necessary to their existence, and iu respect to which they never lose the
u/itmum revertendi.
And we know from the records that for a century back that animuH
rerertemlihus been constantly and tenaciously exhil>ited and exercised.
The municipal law has been fully gone into by Mr. Carter, and 1 pass
from that subject.
Now, have we any rights under the international law? The ]no])o-
sition is laid down in this way and supported by authorities to which I
will call the attention of the Tribunal:
Bnt upon the broader principles of international law api)liciiblo to the case, the
right of ]iroporty in these seals in the United State. i Governnient becomes still cleiirer.
Where animals of any sort, wihl iu their ori<;inal nature, are attached and become
appurtenant to a maratime territory, are not inexhaustible
I ask the attention of the Tribunal to that elenuMit in the case, thus
making them ditt'erent from the boundless schools and shoals of tisli
in their i)roduct, are made the basis of an important industry on such territory, and
would be cxtiirminateil if thrown open to the general and unrestricted i)ur.suit of
mankind, they become the just property of the nation to wiiicdi they areso atta<'hed,
and from which they derive the i)rotection without wliich they would cease to exist,
even thouf^h in the habits or neccssiti<'s of their life some of them ])ass from time to
time into the adjacent sea, beyond those limits which by common consent and for the
purposes of defense iire ref;ard<!d as constituting a jiart of the natiomil territory. In
sucli a case lis this, the herd and the industry arising out of it become indivisible;
and constitute but one i)roprietorsliip.
This high court will observe that in discussing the question of the
industry, a distinction is made between itropeity in that industry of
whi(!h the herd is a part, and ])roi)erty in the individual seal. 1 tun 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 lengtli,
if it be extreme, the United States has an interest in the industry —
this iiulustry founded by Kussia and nurtured, fostered and protected
by itself— that the industry itself is one susceptible of protection by
iutenuitioual 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 availetl of by the United States Government as the
foundation of an important national concern, and in which it is assailed by the Cana-
dians in the manner complained off When this point is determined, all the dispute
that has arisen iu 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 retid at
length what they say, but simply content myself with an extjjact from
each with regard to lishing. How ditterent the case of lishing is from
the pursuit of tlie seal, 1 iuive already tried to .show; antl iiow much
stronger the Case of the United States with regard to seals is than tiie
illustration sought to be drawn irom tishing iu the common acceptation
pf the word, This is what Pulleudorii' ssiys:
i
ORAL ARGUMENT Of FREDERICK R. COUDERT, fiSQ. 293
thus
X\l
Vattel
read at
t fioiu
lis tVoiii
iv nmcU
liaii the
[ptutiou
As for fiHliing, though it hatli much more abiindiiiit sulijeot in the soa than in
lakes or rivers, yet 'tiH niaiiireHt that it may in part he exhaii8te<l, and (hat if all
nations Klionhl «leHire sueh rif^ht and liherty near tlic coast of any pnitienlar
country, tliat eonntry must he very nincli prejndieed in this respect; especially
since 'tis very nsual that some ])articnlar kind of tish, or {lerhaps some more
])recion8 conunodity, as itearls, coral, ainher, 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 t)orderers should not rather challenge to themselves this happiness of a
wealthy shore or sea than those who are seated at a distance from it.
"Tlie various uses of the sea," says Vattel, "near the coasts render
it very susceptibk-! of property. It furnishes lish, shells, i)earl8,
anther, etc.; now in all tliese respects its use is not inexhaustible.
Wlicrefore, the nation to whom the coasts belonj; may appropriate to
themselves and convert to their own prolit, an advantajfe which nature
has so placed within their reach as to enable them conveniently to take
])ossession of it, in the same manner as they possess themselves of the
dominion of the hind tlicy inhabit. Who can doubt that the pearl
tisheries of Bahrein ami Ceylon may lawfully become property?"
We do not doubt it; we do not tlispnte it; althougii we do tiispute,
as Mr. Carter has stated, the grounds upon which that title is asserted
and that ri{>ht is supposed to rest.
"And thoufjh, 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 lishery of a profitable nature, of which they shall become
masters, shall they not be jiermittcd to ai>pr<»priatc to them.selves that
bounteous gift of nature as an appendage to f lie country they possess."
Is not that ])recisely our case? Is not this "an appendaije to the
country we possess"? If not, what is it? Does it not depend upon
the cotmtry we possess? Is not the very condition of its existence
depemlent upon that country? I)() not the United States hold the life
of the seal in their hand upon that territory? Is it not then in every
sense of the word au appendage to the territory that we hold? 80 it
is with Ceylon, and so it is with these coral fisheries which have been
mentioned; they are all marine industries connecte<l 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 nmy appropriate to herself those things of which the free and common
use would be prejuilieial or dansjerous to her.
Can anything be more explicit upon this ]>oint? The common use
would be i)rcjudi(!ial and dangerous to the United States — not only
prejudicial but fatal to the United States — so far jis its industry is
concerned.
This is a second reason for which governments extend their dominion
over the sea along their coasts, as far as they are able to protect their
right.
If the Court please. I was proceeding to read further from Mr. Phelps'
argument an extract which I deem nu)st material; but it is well to
ju'cface it with the rellection t^at the seal exists to-day simply because
we refrained from its slaughter. History has shown, aiul we know,
)»recisely what would become of the seal of the north because we have
the experic nee of the past. As Mr. liuekle has said, the oflice Jintl
function of history is to te.ach us from the stiuly of the past what will
happen in the future; and we know that indiscriminate slaughter on
lantl is fatal to the race. The vacant seal rookeries of the South tell
the story in the strongest and most elo(][ueut terms. In one year when
1 u
294 ORAL ARGUMENT OF* FKEDERtCK R. COUDERT, ESQ.
the antliority of Russia was removed and that of tlie United States
relaxed, or not yet in force, 240,(100 seals were slain in one sin}«le 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 slau^Iitcr tlio United States is not bound to refrain, if the only object
is to i)re8erve tlio iininialH lonj; cuonKh to enable tlieni to be «'xteiuiinat«'d by ior-
eif;nerN sit Hea. If that in to bo tlie rcHiilt, it would be for tlie interest of the Gov-
ernment iind plainly within its ri<j;ht and ])owerR, to avail itself at once of such
present value as its property i)osscsseB, if the fnturn i)rodn(t of it can not be pre-
served. Can there be more conclusive jtroof thiiu this of such lawful possession and
control as const i,tutes property, and alone produces and continues the existence of
the subject of it?
That is to say, if the decision of this hijcli tribunal should be that
indiscriminate imrsuit and indiscriminate killing are to be tolerated
and encouraged, then the United iStutes has the right — whether it
would exercise it or not I cannot tell — of availing itself of and using
for its own purposes and benetit the aninjals within its reach and under
its control, rather than to allow them to be<!ome 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 riglits.
The Minister of the Ignited States to Great Britain used tlie 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. 1 submit to the court that he did not exaggerate; that if any-
thing is against good morals, it is a 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 chddren 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 exterminjitea useful race, can be per-
missible. Some remedy must be found. This high court will tind it,
and must find it; as it is conceded by all that this is 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 n»ust be applied. There-
fore it is said iu this brief:
The method of pursuit employed by the Canadian vessels, and against whi<h the
United States (JovornuK'nt protests, not only tends to the rajtid extermination of the
seal, but is in itself barbarous, inhuman, and wasteful.
Can there be any (juestion about th.at? If there is now, there will
not be when this higli 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 senson of wild animals of any hind which aro
in any rt'sjiect useful to man, is ]irolii1iitf<d, not only by all the instincts of Imnuinity,
but l)y the laws of every civilized country, and especially by the laws of the United
States and of (Jreat Britain.
We have to start, in trying to ascertain what law may be applied at
this i)oint, the common consent of both nations that this practice is
wrong anil criminal. 1 read from page 130:
The depredations in ([uestion, digniliod in the Keport of the British Commission-
ers by tln> name of an " industry, " are the work of individuals who lit out vessels
for this purpose. Their number, though increasing, is not great. Tim business is
speculative, and as a whole not remunerative, though it has instances of large gait
which stimniato the enterprise of those concerned, and nuike the j)roapect attract-
ive, like all occupations which have a touch of adveuture, au element of ganibliug,
aud a taste of cruelty.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 295
ATid T in.ay add in tin's connection as an ovidenco of tlio kind ftH'liii;^
of the British ('oniniissioners, whose roixn-t, as I have said, is tlie most
important clement in the IJritish Case, that they have advancn-d — and
we mnst be gratefnl to them for tiie kindness which it evim-od — an
argument why the United States should encourage pelagic sealing.
I am sure that the uiiaidc<l ingenuity of the arbitrators, collective or
individual, would never imagine what that advantage is; it is that by
encotiraging i)elagic sealing we will i'reate for ourselves a nursery of
brave and hardy .sailors! I do not believe that cither (Ireat IJritain or
the United States needs that nursery. I think the instinct and the
ability on both sides for making good sailors to light the world and
each other nee«l not be encouraged by slaughtering female seals in the
Bering Sea.
Against this injury, whirli tlio United States Govornniont. has made the snlijcct «f
vniu rcnioiistraiice, tlitTo ar<« a))soliit)-ly no means of dt'leiist; that can la; niadi-avail-
alile witliin tlio IlniitH of territorial Jurisdiction.
No fortifi«!ation8 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 impossilile, when seals are hunted in the water, that tlie sex ran ever tin
diHvriniinafed before the killinjj; takes place, it follows tiiat if what is calleil "peiajiic
Bealinjj" is allowed to be carried on, the enornions ]>ro]>ortion of i)rej;naiit and suck lin;;
females and of unrsing yonnx; before n^ferrecl to, mnst eontinne to be destroyed.
Then comes the question of rai<ls. The raid is an attack made under
cover of the night or of the fog by bolder and more experien<'ed men,
who are willing to take the chances of being shot — wliich chances the
British Commissioners suggest ought to be greater — men who are wil-
ling to iiivade 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 arc concerned the ( 'nited
States asks no help from this high Tribunal, or from anyone else; but
you will bear in mind that when you arrest pelagic sealing, you also
dispo.se of the raids. The raiders are the men who hover around the
coasts, who come in, as I have said, under circumstances favorable to
their pursuit and having a right as they claim — a riglit which we deny —
to visit those waters for the ])urpose of hunting seals, take advantage
of every oi>port«inity to come upon the shore and accomplish their mis-
sion of destruction. This, so far from being an argument against the
contention of the United States, is one of the very strongest arguments
that we can use against pelagic sealing. Raids arr most destructive.
It was not pelagic sealing that destroyed the Southern s<'als. Whyi?
Because it is so much easier and more protitable to go upon your neigh-
bor's land and to take his inopj'rty there, tlian to scour the earth and
the sea in quest of sometiiing 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
sljiughter them in masses. Whether the elfect (tf the decision of this
high Tribunal m.ay not be to save the seal all over the world is a ques-
tion which 1 nee<l not discuss; but it is a comfort and a retlection to
believe that, in our a<lvocacy of the rights of the Unite<l States and in
our denunciation of this cruel and barbarous method of pursiiit, weare
perhaps the advocates of Great Hritain as well as of the United States.
The question is a large one in every respect. It is one well worthy of
i\
29G ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
tlie consideration of this Hifjli Tribunal and of the attention that it shall
trive it. It is not only the protection of our property; it is the estab-
lishment of a great and beneticent principle which will operate for the
whole human race.
So nuu!h for the raids.
Senator ]M(Ui<JAN. Mr. Coxidort, I wish to inquire of you, whether
you have examined into the question whether under the treaty between
the United States and Great Britain the citizens of each country have
not tlie riglit to enter tlie territory of the other for .any innocent pur-
l)<>s(^ without beinj; prohibited?
Mr. (Joui)EUT. 1 suppose that this is conceded. There is no ques-
tion about it; and when I speak of pelagic sealing I am speaking of a
criminal act. The sea is open to all for innocent purposes; and I might
concede, for the sake of the argument, that the British sealer has. just as
much light to kill seals as the American sealer. It is stated in argument
tliat a great many Americans are engaged in it and in fact we claim
and contend that mutato nomine tlie Canadian is often an American. I
hsive no doubt that tliat 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 qu<'stion of natiomility.
The PiiEsiDKNT. You meau in the Bering Sea!
Mr. CouuKKT. Yes, sir.
The President. Not on the coastT
Mr. CouDERT. 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 Isind is not the
destruction of property of the United States and the British subjects
have the right to go tliere without interruption, why may they not go
there to hunt and kill the seals on the land as well as they might hunt
and kdl wild ducks?
Mr. CoUDEKT. Certainly they may, if we have no right to them. If I
have no riglit to my horse, my frieiul who has a pass to enter my prop-
erty may tliereby ride away on the horse, of course I cannot stop him.
Senator Morcan. Then we could not possibly prevent a raid upon
our islands being made for the innocent purpose of killing the seals?
JMr. CoUDKRT. Certainly not; and if it is ai; innocent purpose unless
we put a Chinese wall over our territory we cannot prevent it. But if
they are our property, and if, as I insist most respectfully, the seal is
just as nuicli 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.
Tlie President. You mean in this case civil property? The United
States owns the seals as civil property as individuals?
Mr. CouDiiRT. 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 tinqualitied 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 Govenimei'*^, as a corporation, if you please, undertaken to
raise seals. That subject was discussed — and Senator Morgan knows
it, for he was in the Senate of the United States at the time. Or a
corporation could be formed which would have the privilege of killing
a certain number, or an uncertain number— there was a maximum but
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 297
no Tniniinnin — sulyeet to the n'};nlatioiisof llie IJiiitod States; and the
(lueslion euiiie up in Conj^ress wliich was the one tliat lliey sliould adopt.
The United States is, 1 am fjhid to say, lehutant to go into any busi-
ness except that of j>'overninfj our ])eoj)le; and the less she {joverns
us the more we like it. That is the function of the United States — to
do as Httle governiii}; as possible. To go into seal raisinjf seemed to
many nu^rt soniething tliat should be avoided. Then there wfis 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
ap]>urtenant to its soil. It is an outgrowth of its soil. It is connected
with its soil. It is inseparable from its soil.
The rKEsiDENT. At what moment, according to you, do the lessees
become owners of the seals?
Mr. C<>ui)Ki{T. They never become the owners, if the President pletase.
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 bkin is absolutely
theirs.
The President. It is only the skin that becomes their property?
Mr. CouDKiiT. 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 1 would rather not commit
myself to any theory.
The I'BESiDENT. The point is to fix the moment when they become
owners.
Lord IlANNEN. How about the oil? Is not oil extracted from them?
Mr. CouDERT. I tliink to no practical extent.
Senator Morgan. That is taxed also. Oil is taxed.
Mr. OouDERT. Yes, the oil is taxed; and the carcass is also used for
food. The residents use the carcass for food.
But I was answering one of the learned Arbitrators, and I come back
to the point. It is a test, an excellent test, as to the «iuesti(m on which
I thought we were agreed; but from Sir Chiirles liusselPs remark, I
think we are not. Senator Morgan's suggestion alfords a test as to the
correctness of my position with reference to the right of property on
the island. We do not dispute that frien<lly nations may come upon
our territory, if they are guided by no bad motive, and animated by no
hostility. If, however, they come to these islands in a sealing vessel,
with men armed with gatl's and ritles and guns, we know that they are
malefactors. W^e 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 i)reseut, 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 ])ermit them to extend the hos-
pitalities of the pla(!e. When men go there in a boat, with certain
apjdiances, you maybe absolutely certain that they are going there on a
raid, especially as they never go there in broad daylight, but select foggy
days or cloudy nights.
r jrsuing this suggestion of Senator Morgan, why do we repel raids,
and what right have we to repel raids?
Senator Morgan. That was the i)olnt of my inquiry.
Mr. CouuEST. I do Jiot understand Iroiu the other side that they
I
::l
1 ii
298 ORAL ARGUNfENT OP PUEDKRICK R. COUDERT, ESQ.
I' '
have yet claimed, I do not know in tlio ovolntion of arjfunient tliat tliey
will claim, that wo could not prevent a raid. If so, when we bought
the seals from Kussia, wex)aid a very larjje price for the animals. If
there ia 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 justlHed the claim that so long as these
animals were upon our soil and attached thereto, they were not abso-
lutely ours, nti et nhitti, 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 Euroi>e.
Our jurisprudence in many respects is very ditterent, 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 Knglish language has permittecl
yon, pr(>bably, to enjoy the perusal of those lectures; but it is no affront
to say that the knowledge of the English language is imperfect, as a
general rule, in your country.
The President. I believe that the name of Chancellor Kent is
known all over Europe.
Mr. CouDERT. 1 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 lias a riy;ht to consult its own safety and conven-
ience, and to pursue its own course and business without bein^ disturbed, when it
doeH not violate the rh/htu of othcm.
The freedom of tlie high seas for the inoffensii-e navigation of all nations is firmly
established.
You will see here the cautious language that tliis great jurist uses.
Sir Charles Kussell. That last statement is by an English jurist,
not Kent.
Mr. CouDERT. Does not Kent adopt it?
Sir Charles Russell. 1 do not know. It is quite long afterward.
Mr. Phelps. That is quoted in the ojjinion in Queen v. Kehn.
Mr. CouDERT. Well, 1 do not object to it for that reason. Perh.aps
in some respects it would be all the stronger. I am sure, however, that
it is precisely the same idea.
Sir Charles Kussell. Oh no.
Mr. CoUDERT. Kent says that the vessel in time of peace may pursue
its own course and business on the higli seas when it does not violate the
rights of others. If it 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 whicli one of your
Arbitrators now belongs:
P'very ship sails there [in the open sea] with the nn()ucstionable right of pjirsuing
her own lawful business without interruption, but whatt'vcr inuy be that business, she
is bound to }tursuo it in such a manner as not to violate the riiilits of others. The
general maxim in such cases is sic ulerc tno ut alieiiuni ixni hidan.
Are they doing us no injury when they destroy our ])roperty by kill-
ing the pups through the killing of the mother? Are they using their
rights without injury to us when they are destroying a valuable and
costly iiuiustry? The question answers itself.
The safety of states and the protection of their commercial interests were not sac-
rificed to the idea of the free<lom of the sea. That freedom was conceded for the
purposes of such protection, and as affording its best security.
ORAL AROtTMENT OP FREDKRICK R. COUDERT, ESQ.
299
If we study this question, this dcvt'lopnuMit of the rule of the freedom
of tlie sea, u priiutiple whieli was lonj; 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 tiiat it atforded to all nations, but never as a
vehicle for wron;jd(>in{;: and so far as freedom of the sea is concerned,
if we have there any riffhts, the doctrine of freedom of the sea, aiul the
shibboleth that the {jreat ocean behmj;* to all people to do what they like
thereon, have nothing;' whatever to do with the discussion of this question.
Wrong' is not made right because a man is in a ship. Kight does not
abdicate be<'ause it steps ui)on the (|uarter deck of a man-of-war, or of
any other vessel. Kight is right, on land and on sea; and the expan-
sion of civilization makes that i)ro]iosition clearer and more applicable
every day.
Then it comes to this: We have an industry, we have property, on
the land. That proix'rty is ours. It is appurtenant to our soil. These
animals, ditterent 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
nmn, many years ago, said, "There is nothing new under the sun."
There is very little new in law. Of course codification may introduce
by express enactment new ideas into thecodethat governs a municipality
or a nation; but when we are dealing Avith 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. Tlie (piestion is. What is right? Is there any-
thing now 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 tnmbled
him. Why? Because it was founded upon "• age, 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 tliat 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 r.ace of animals; but all we
ask is not the a])plication of new, but the application of old, principles
to this case. It is not a new 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 dillerent. It is ditlerent because the habits of this
animal are so nearly akin to those of a laiul and domestic and tamo
aninml that the analogies taken and given in our briefs fail to cover the
case. They are too narrow. We go beyond them. If those illustiationa
are good, a fortiori are we right; but even if they failed in any sense,
still we nuiy 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. Aiul
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 Bussia lias
insisted upon doing, to say: This is our projierty; no one shall inter-
fere with it — or, to come before you, not abamloning or waiving one
iota of our original position, but as Mr. Carter so elocpiently stated
yesterday, to avoid all possibility of collision, submitting our conten-
tions to an impartial and enlightened ccmrt, and praying that it may
lay down a principle which will go far beyond our necessities and the
^1
i
>■<.
300 ORAL AROUMEXT OP FREDERICK R. COITDERT, ESQ.
!l'
necpssities of tlio otlicr »'n\o, to be a Immcoii, it('rlini)s, for I'litnro tinio
and future ^cncriitioiis.
Nor do J think it lu'cesMiiry here to consider the three mile limit, or
the (juestion of ,iurisdieti(ui. These matters are entirely separate and
distinct. For tlie ])uri)oses of tliis ar^^inicnt we concede to all the
nations of the jflohe — 1 desire to l>e \v\y caretul here of the i)articular
point that I am on— we are willing' to concedi^ to all the nations of the
{jlobe the same riyiits in I»erin^ Sea as we ourselves possess: the
same r'.};:ht to no and to come, the sanu', rijiht to stay or to leave, the
ri^dit to <Io everythiufr that is rij-ht, th<> rif^ht to do nothiu}; that is
wron^'; and thus we always come back to the (piestion whether it is
wroii}; to <lestroy our pi'oi>erty against our will when we are helpless
unless we invoke force.
1 (U'sire also to call the attention of the Court before closinj>- this
branch of the argument to the fact that it is uixui theiiriiiciples that 1
have trie«l to make clear as those for which wv c(»iitend, that all marine
property is held, that is, all that kind of ])ro|)erty that is spoken of in
the respective ar}>uments of <'ouiisel. Instances are {jiven here, and as
my friend, Mr. Carter, has dwelt sonunvhat upon these points, 1 shall
merely allude to them. Instances are {•iven heie of cases where j^reat
nations have claimed rijjhts outside the Jurisdictional limits, the arbi-
trary three-mile limits, yoinj; out twenty miles, thirty miles, titty miles,
liundreds of miles; and the coral beds of (Ireat JJritain and <tf Italy,
and the tisheriea of Fiance have been spoken of — not only to ])rotect
eoral beds, but to j)rotect oyster bi'ds, to protect seals; for at last (Ireat
Britain herself has become alive to the fact thata valual)le iuibistiy of
hers was in piocess of rajiid destruction, and she lias endeavored and
is now endeavorinff to shield and i)rotect her seals. Tlu^ ar<;iinients
that have been made by .Air. Carter, and the few remarks that 1 am
making' iip(ui this subject, should not be understood as in any, the
slightest, way disputing; tlu^ rijiht of (Jreat Britain, Italy and Franco
to such property. Only I may be ]»ermitted to say, and 1 hope that it
will not seem i»resuin])tiious when 1 do say it, that the tenure must be
indeed frail if it rests upon the argument stated in the British Case;
whereas it is impregnable, if I am right and if the arguments used by
Mr. (-'arter are ai)i)licable to the ease. This property does belong to
those nations, not because it ha]>])ens to rest uyHni the bed of the sea,
but because it is au InduHtri) belonging to those nations, connected
with their territory, and couceded t > them, ex nccesHitatc, by the eom-
nuni consent of mankind.
VisooNTi DE Vknosta. I wiU say in regard to the observation of
Mr. Coudert, that the Italian decrees do not ap]>ly 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 ajiplicatioii is only in territorial
waters. So really that decree does not apply to tbreigners; but the
industry, in facit, is exclusively carried on by Italian citizens. I must
add, however, that tliis prohibition has now been reiiealed.
Mr. CouDKKT. I was coming to that question — the discrimination
between citizens and foreigners, and the ]>rivi!ege that that rule would
give to foreigners over citizens. Of course, if, as the Arbitrator says,
and 1 desire to be instructed by him
Vjsc'onti dk Vknosta. It is merely a question of fact.
Mr. CoiDEKT. I desire to be instructed by him either on the facts
or on the law; and he is (piite competent to instruct me on either. Of
course if the industry is carried on within territ(u-ial waters, this is not
applicable at all. I concede that. Jf it is within your three-mile limit,
ORAL ARGUMENT OF FUEDEUICK R. COUDERT, ESQ. 301
Sir Clinrles Knssell iniKht object (o it on tlic {rroinid that ha objects to
our owuinj; tlie seals on our own land. How Itsily is to own eonil beds
three miles away, if we are not to own seals on oxiv own t»'iritory, I «lo
n(»t know. Hut there is a (luestion that i will <'onie to in a moment, vi/,
how far these statutes ai)ply to <!iti/ens and not to aliens. However, I
am much obli};ed for the correction, and of course if they are within
territorial waters,! leave the Italian c(ual lisheries out of the case,
lint one illustration is as ^ood as ten, and it is manifest that in sonut
of these cases here cited the ]»rotection {{oesmuch further than the lindt
of territorial waters. On i)a;;e 107 of the Aryument it apjtcars thatas
far back as 1 «(!.),
Tlio tiikiii;; of seal, in wlijitevnr roiiiitrv tln'v linvo been foutul, luis l>e«'n in iin
especial nianiirr the siiliject of Ic^fislativo and jtovfrninental re;;nlati(in in the ojieii
Hea. Anil in siicli actions (ireat llrilain iiiiil ('iiiiMila have l)ecn c(>ns|iiciioiiH.
Hy an act of tiio Itiitisli I'lirliamciit passcii in IStiH, the colony ol New Zealand was
inaiie co-extensive with the area of land and sea lioiindod by the tbllowin); iiaralleU
of latilndi' and lonj^itnde, vi/.., lil! N., 5;) S. ; 1(11! K., 115^ \V. The sontiiensteru
corner of tlii8 parallelogram is sitnated in the I'acilie Ocean over 700 miles Irom the
foast of New Zealand C't! and 21 Viet., eh. l-'li. sec. 2).
In 1S7;{ till' le};islntnre of New Zealand jiassed an act to protect the seal (i.sherioH
of thi< colony, wliieli provides:
(1) For the estaiilishment of an aunnal close season for seals, to last from October
1 to June 1.
Ihnv let me be i)ermitte<l to say 1 do not care what th^i lejjislation
is, if there be any. If they can establish a clo.se season for one week,
they can for one year; it is the aNsartion of dominion that is important
to consider. It is the claim of title that we want to get at, not the
very mild, }»eiitle nieasur»'S that may be adopted. Perhaps they are
entirely insulVicitMit and more radical ones ouoht to be selet^ted; but if
they claim the ri},dit to establish a close season, they must also, by
imi)lication, insist upon, and claim, the right to enforce that close season.
Jlow are they to tlo this except by force? Not only did the (lovern-
nient of Xew Zealand assert the right, but delegated its authority in
these words :
(2) That the jjovenior of New Zealand nii.<;ht, by orders in conncil, extend or
vary this ;'loso .season as to the irhulv ciiloini or an;i iiarl tlirrcnf, for three years or less,
and before the expiration of such assigned period extend tie close season for another
three years.
If that be proi)er and correcjt, if Great Britain has a right to go over
a dominion or domain of water extending some 700 miles, then by what
jninciple may we not adoi)t those measures, and ask for the adoption
of those rules which are al)soliitely necessary to the object in view?
The President. — Do you believe that law was ever ajiplicalde, or
api)lied in fact to foreigners, and accepted by them?
Mr. CouDEUT. — I intended to say a word upon that, and 1 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 untbrtunate citizen of Great
Britain who started at tlie same time as I, is captured by a Kevenue
Cutter and very properly sent to gaol. That every ])08sil)le sort of
juivilege and immunity should be granted to the (Inited States, I
highly desire, but in si)ite of law argunu'nts emanating from tlie
liighest source (and the highest source is before us), I doubt if that
302 ORAL ARGUMENT OF FREl>ERICK R. COIJDERT, ESQ.
would be tlie result; niul If I had any clioiit who was ready to embark
his capital in the plundering of these oyster beds or the slaufrhter of
the New Zealand seals on th<' tlieoiy tliat lie had an advantage over
the liritish sulijeet beeanse lie was an Aiiieriean. 1 would a<lvise him
to stay at home and enter into some more reputable business — 1 do not
believe that he would obtain immunity. I etuii-ede that tlu^ proposition
is eorreet as stat«'d in the abstract — that i»enal laws juitsidc the terri-
tory do not ap|)ly to any but citi/ens, as a general proposition. I do
not concede, even tor the arf;unieiit, that in the case of the r>erinfr
Sea the statutes of the United States do not apply to every ship upon
that sea whatevei- its nationality. ISiit that, I have eliiin'nated from
my ar;;ument, and I concede as a ^ciieiiil proposition, that a penal law
in Hiicli fjeneral lan^ua/^e as to nirii prison does not ai»i>Iy uidess a,
crime is committed, within the Jurisdiction, to a loreijiM citi/«'n. Kven
that is not universally the i-ase. I do not know how it is in other
continental nations, but I know for instance under the old laws of
Prussia, and today, of (lermaiiy, tlie arm of tiie law will n-acli a citi-
zen who commits an otleiu-e even in a lbiei<;ii juiisdiction. lie has not
offended tlu^ law of Prussia, he has offended the law ot another nation
to which he is answerable, and yet the hand of tlie law extends and
tirasps him where it may; and when we are told, as we are told, in the
brief of the learned Counsel, that these statutes i' • not apply to <!iti-
zens of other nations, 1 wouhl lik'_' to ask wliethc hey mean by that,
that uo punishment would be inliicted, no conii ition i)ut in force,
and no rei)ressive measures set into operation, if a foieij^ii ship should
accompany the ship moved and owned by citizens?
The I'UKSiDEM. — Peiliai)H we shall hear a little more explanation
about that from the other side in due time.
(The Tribunal then adjourn»'d for a short time.)
Mr. CouDERT. — When the hour of re<'ess arrived I was callinfj the
attenthm of the Hij»h Tribunal to the vari<ms laws which had been
eited in Mr. Phelps's argument to show what Jurisdiction great nations
had assumed, and properly' assumed, to protect their i)roperty rights
or to protect their industry, and a number were cited. 1 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
nuule such an exjdanation of the laws which lifive 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, therefore, I i)refer not to rest upon it. Other illustra-
tions are very strong and sutliciently prove the i>osition 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 Mere 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 And the laws of Great Britain were passed for the ]>urpose of
protecting vseals 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 bt thrown roun<l them, and sonie 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 uatious, have all i>assed laws for the x)ui'pose.
OKAL \U«rMENT OF KFtKDKKICK R. COI'DERT, ESQ.
303
It Ih niini'cossary tu a<I(l that the mere passa^i' of a hiw in an aMHum|t*
tion of I'mUt — an exiTcise of Jurisdiction — and it makes vrry little dif-
fot'cncr HO till' as the ^iiMicral principle is mncrrncd whether that law
hv applicahh; and nniy be extended tootMeis than nationals. 80 far
as the main |>i'oposition is eoneenied, of the assumption of a li^ht, if
Fiaui-e i>asses <*eitain laws to protect ceitain lisheries and if France
conlln(>s tliat with an idea, real or mistaken, thi>t it may not no beyond
a ]>roiiil>ilion to its own (;iti/.ens — if it pass that law, by the mere pas-
Hajie of that law it exercises a Jurisdiction and asserts a rij,'ht be(;ausu
the laws of ci\ ilized n:itions are not nmd«^ merely to harass their own
eitizens. The tlieory is protection to citizens in ex<'han};e lo» service,
but what kind of law would tiiat Ix; which France or (ireat Hritain
woidd pass to pn)te('t the seal, or the oyster or the coral, which would
bu directed only a<;:iinst its nationals because it bad no ri^^ht to touch
any other trespass«'is than those?
Of course they would be worse than nuj-atory, they would be worse
than futile. They wonhl be arbitraiy and cruel. No nation under-
stands this better than Great Britain. No nation has ever gone further
than, — 1 may say that perhaps no nation has ever gone so far as, Great
liritain in the assertion of the right to piotect all round the globe (for
her possessions exten«l all round the globt!) the man who owes allegianco
toiler .ag and obedience to her law. Otlun- nations nniy have found
that she ])uslied these pietensions and claims perhaps to an extravagant
extent; but to her credit be it said, that the British citizen was Just as
sure of ])rote('tion from outrage by foreign Governments as the citizen
of liomewhen he could say "I am a Boanin citizen,'' and, when be 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 tlion^ was uo nation on the globe great enough to
oppress her citizens. Are we to be told now, and is it seriou.sly to be
argued that Great Britain passes laws oppressive, repressive and cruel
which are to apply only to her citizens, and leave ^^"i 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 ou 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 Fisliories Act", they sity, " jjiohibits the l<illtii)r of whales, seals, or por-
poiHeswith cx])h)Kivo iimtniiiieiitM, aiitl tliiriii^ H(>alt'i8hiii<; time from disturbing or
inJmiiiH any seilciitiiry seal lishiiy or from frightuniug the shoals of seals coming
into uuch fishery."
Jus I what we are trying to do, to prevent the destruction of the shoals
that are coming to our land.
The United States statciueut in -espcct of this Statnte is that it prohibits all
persons without pn^scribiiifj any n arine limit; and the infia'euce drawn is that it
applies to all itersons ou the high seas, iucludiiig foreigners.
1 need not pursue this. There are a number of other cases cited by
way of illustration, and the distinction is made in this case and in the
case of Chili, Japan, Panama and other nations, that these only apply
to nationals and not to Ibreigners. I do not Ixlieve, 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 j)ermissible to a Frenchman or an Italian, and
I shall not be satistied 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 j)crform its work with impunity. I do not
deny that as a general jnoposition penal statutes of this kind cannot
operate outside the territory except as against nationals, but J 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 ])ower to prevent him; and having received the assurances
of distinguished regard fnun the courteous commander of the man-of-
war, all the rigonrs of the law would be reserved for the liritish citizen.
That is directly the converse of the action of Great Britain in all
cases. 1 take it tliat the rule is this, that while the statute itself would
be inoperative, jjcriiaps, as a statute outside the jurisdictional limits,
against an alien and foreigner, the rule of self-defence stejis in, and
under a changed name and a diflerent theory the wrong is ])revented,
and that the Frenchman, or the Italian, or the (ierman, would find that
his fate was not improved exce])t that he wouhl be stopi)ed on general
inincipl«^s of defence, whereas the other wouhl be simi)ly told, there is
41 statute passed by your own nation, you are subject to the penalties
which it athxes. If so, we are disj)uting about words. It nuist be so,
because it is impossible that Great liritain should be willing to say to
the whole world: "You have an advantage over our peo]»le, and all you
have to do, when you invade (mr lisheries or our schools of seal, is to
produce the opinion of distinguished counsel, ba(!ked up by decisions
of the English Courts, that English statutes do not api)Iy to any but
nationals, and the pro])erty is at your service". That is imi)ossible.
Therefore, I say that this is njore a debate on Avords 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 a(loi)ted 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 ai)ply, then 1 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 sufl'eied 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".
Iso, Sir! Great Britain has never, and I hope the United States will
follow her exami)le. discriminated against her citizens, but she has
always exalted tlie position of a British citizen, just as high as liumau
power could do it.
In the abstract then I am not disposed to quarrel with my distin-
guished friends about their views on this i)oint. We will concede that
tlu'ir proimsitions of law, as considered in the abstract, are sound and
tluit we cannot legislate for foreigners outside (mr jurisdiction; and
yet they will be comi)elled to admit that even if this be so, the right of
self defence is not imi)erille.d, imjiaired, 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 ui)on 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 ca -e, by ]>rotection. How is the freedom of the
8ea saved (if it is invaded by our contentious), because the oysters live
do not
[ cannot
do dony
sny that
exempt,
because
inraneos
nian-of-
1 citizen,
in in all
If would
il limits,
4 in, and
pvented,
find that
general
there is
)en allies
st be so,
to say to
il all you
eal, is to
lecisions
I any but
possible,
lestion of
)tect our
le, under
IS a sinii-
t Britain
ig which
tute does
license
hat per-
proud,
{J to one
minded,
iivented
g dove".
ites will
she has
human
y distin-
'de that
iind and
on; and
right of
ground;
the fact
g to its
lits pos
n of the
ters live
ORAL ARGUMENT OF FREDERICK R. COUDEHT, KSQ. 305
upon the bottom of the sea and never frequent the shore? l!i order to
reach them, must you not go ui>on the sea? INIust yon not go below
^he sea? Must you not protect the sea? Is not the surliice of tlic sea
the space that you must guard in order to guard the i)rop('rty iKMieatli?
It is true there is the ditl'erence that the oysters nevci I'rciinent the
land. There is this difference in onr favour, because, to tliat 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, wh.it I take to be tlie fact, that we do
not really diifer upon this (piestion, but that, ui)(»n tiie substance, (ireat
Britain and the United States are agreed; and France would he agreed,
for her interests are the same and her conduct ideniiral, — fliat any
national industry, even ujton the sea, is to be lU'otected, and that tlie
right of self-defence may properly, fairly and legitimately be invoked
whenever that industry is attav-iced. There are only two conditions
attached to that; first, is it ne.'-jssary to use measures of self defence?
And, in the second place, arc the measures proposed rcasonaljle? If
both those questions are answered in the alliriuative, then tlie exeirutivo
act which puts resistance in motion and which vindicates national right
is complete, is justilied and is law. And it is hue 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 exi)ected from one nation or the other, conlined witliin narrow
limitations which sometimes strangle the right; but from a Tribunal
formed for the very purpose of expanding, enlarging and recognizing
the beauties and greatness of international law.
The legal princii)les contended for by our friends on the otlier side
are stated at page 55.
Thiit !)>' the uiiivers;il nsaRC of nations, tlio laws of any Statn liavo no extra-torri-
torial api)lication to foreiguers, even if they iiave mich application to siihjccfs.
With that, subject to the limitation that I have tried to make clear, I
can find no fault.
That Great liritain has incorporated this principle into her own law Ity a lon<i;-
estahliobid usage, and a series of decisions of her Courts; anil that tUt! law of tlie
United States is identiccal.
With that I find no fault.
That the Briti;di Colonies have no power to legislate for foreigners beyond the
colonial limits.
That inicrnational law has recognized the right to ac(|uire ccrtiiin jiortions of tlie
waters of the sea and the soil nnder the sea iu bays, and in waters lictwecn islaiiils
and the niainlnnd.
This, in its terms, I should not be willing to recognize, because it
recognizes the symptom aiul not the cause. International law has
recognized the right of Great Britain and other Nations to ctMtain
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 attcnipted to be traced by the United States between the claims
to jnotect seals in Behring Sea, and the principles 'ipplicablc 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 an<l to handle our property, tluit we
should dive down to the bottom of the sea. These animals come of
B s, rx XII 20
306 ORAL ARGUMENT OF FREDERICK R. COUDEKT, ESQ.
tht'ir own volition, jjnidod by tlioir own instincts and ])resorved by that
instinct from dcslniction. Tliey come ni)on onr soil; tliey seek it;
tlicy choose it. They live there, and breed there; and certainly, dur-
ing? tiie time that they are there, they are nnder onr protection and in
onr i)osscssion.
And, liniiUy, that tli(!ro is no coniplcte or even iiartial consent of nations to any
such pretension as to in<»i)ertj' in, and jnotection of seals as set np l»y the United
States.
Undonbtedly that is true. There is no snch complete admission of
our ripflits so lonj; as a powerful nation \i\u\ (Jreat Britain denies them.
Certainly this is trne, for if (ireat Britain accepted onr views of the
situation we would not have the honor to be here before this Tribunal
to day. If the United States lias a rijiht of jtroperty either in the seals
outside the territorial liiieorof self defence in resjjectof their interest
in the herd, no (|uestion is submitted by the Treaty as to how that
rio'ht is to be exercised and enforced. It is to be presumed the United
States is able to enforce that rij^ht. It is to be presumed that no
nation wouhl be willing' to dissent from the conclusion reached by this
Tribunal should it reco.unize that riyht. All the desirable results
should follow from that decision, namely, that other nations should
abstain from dispntin*;' that whi(;h is assi{>,ned to us. It might happen,
perha])s that the United States would undertake, in an excessive or in
an improper way, to assert and exercise and enforce its riglits but that
would apply to any other rioht. There is no right which may not be
asserted in an offensive way. There is no claim, however just which
may not be enfctrccd 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 ideases, said all that I deem it necessary to
say upon this branch of the subject, and I will proceed to a matter
more directly coniiccted with the facts in the case. I am quite con-
lident that every .Iiidgeon the l'.ench and perhaps every Jurist on this
Bench has recognized that one of the great dilhculties in this case is
due to the absence of what we call jdeadings — the absence of issues. I
cannot but believe that if this case had been brought into Court in a
manner common to both nations in such a way that issues would have
been framed, very little dispute of fact would have arisen between our
distinguished friends and ourselves. This absence of pleadings and
therefore of issues, has injected .mi element of confusion into the case
which it is very ditticult to get rid of. To decide what is the question
in a controversy has been a dilliculty 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 (Ireat r>ritain, the United States,
or France, or any other country, if, to have an assertion of right made
on the one side with a denial on the other side — in other words, to pre-
sent to the Court in the clearest numner jxtssible tlie various contentions
of the dirtevent parties. Every lawyer has experienced the advantages
whi<;li resulted from the ade(iuate ju'esentation of tiie issues, although
he may occasi(»n;iJly have been confined witliin narrow limits by their
ojjeration. Tiiere is no such ditliculty here; we may discuss every-
thing; we may discuss the nature of the seal, the habits of the seal,
tl'.e life of tiie 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
by that
;eek it;
ly, dur-
and in
118 to any
le United
ssion of
;s tliein.
s of the
'ribuiuil
he seals
interest
ow that
', United
that no
. by this
I resnlts
^ should
happen,
ive or in
but that
y not be
st which
mce and
mst take
in a just
issary to
I matter
lite con-
t on this
s case is
ssues. I
ouvt in a
lid have
kveeu our
iigs and
the case
question
>n and a
tion was
1 States,
ht made
s, to pre-
itentions
vantages
although
by their
B^s every-
the seal,
I to deal
conceded
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 (Ireat
Uritain 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 i>oint,
a result to be attained, something desired by one side and objected to
by the other — but here we both want the mme thing. We botli 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 conies back to this: these two nations want
to tind out how they may, without sacritice 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 Ilij^h Court of Arbitration to find how to
preserve and protect them, thus satisfying, as far as the final result is
concerned, both i)arties to this controversy. That result was almost
attained by diplomacy. jNIr. Phelps, the United States Minister in
London, had stated his proposition clearly and strongly to the Govern-
ment of Her Majesty, had been met in the fairest way, and a scheme
had been agreed upon, which at that time would have been as satis-
factory 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 parlies sup-
posed that a certain protected zone — a large one — or a close season, as
proposed, I think it was by Lord Salisbury, would satisftictorily protect
these animals.
Mr. Phelps. — It was proposed by the United States Government
and assented to by Lord Salisbury.
Mr. CouDEBT. — 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 ])rohibition — a close season that w<mld permit
pelagic sealing cannot i)revent pelagic slaughter. The very nature of
the biisiness, however carried on, is of sucli a character that the sealer
cannot discriminate, and if you start with that assnmi)tion which is
one of common knowledge and which my associate has so eloijuently
brought into the case, tiiat the only means to i)reserve the race is to
preserve the females — if you start with that, tliere is the end of the
l)elagic 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 ujmn was such a scheme as
to permit ])elagic 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 ]>iohibition.
We have now reacihed 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
l)elagic sealing and pelagic sealers, of course, this High Tribunal will
understand that it is simply a denun«dation of the business. It is a
denunciation that applies to two classes of men the Cana<lians and the
Americans. How many of the Americans are engaged in this business
iu violatiou of their national law on Canadian ships 1 (Jo not Uuqw, but
308 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
pi
{(■ ' .
r
f^^;=
as those ships come from Canadian porta and profess to sail under the
British flag, I 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
inade, the eflForts, 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 rejid 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 tlie first time. It is found at page 213 of the Papers presented
to the British Parliament, — the Appendix, Volume 3, to the British
Case. It is dated Ottawa, July the 7th, 1888. It is signed by Mr. Ceorge
E. 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 si)eaking, 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 iindorsignod has the honor to submit for the consideration of the Governor
General in Council the following observations in respect to a despatch from Lord
Knutsford to Lord Lansdowne, dated the 8th March, 1888, and enclosing a proposal
from Mr. Secretary Bayard for the establishment of a close season for seal fishing in
and near Hehring Sea, to extend from the 15th April to the Ist November of each
year, .ind to be operative in the watc-rs lying north of latitude SO*-" north, and between
longitude 160° west, and, longitude 170° east from Greenwich.
The Court will see what a wide space that covered, and what a broad
period of time.
Before entering on the discussion of this proposition, the Minister desires to call
attention to a sentence in a letter from Lord Salisbury to Sir L. S. West, dated the
22nd February, 1888 and forming a part of the above mentioned despatch, in which
Lord Salisbury says: — "The United States Minister called today at the Foreign
Office, and spoke to me about the question of the fur seals in Behring Sea. He said
that the difficulties in regard to the seal fisheries in that sea were mainly connected
with the question of the close time, and that no attempt had been made by the author-
ities of the United States to stop the lishing 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 seastm 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,
wliich by the United States contention includes the waters of Behring's Sea as far
westward as a line drawn from a point in Bering's Straits south-west to the meridian
of longitude 173° west, the killing of fur-bearing animals, amongst which the seal
is included, is prohibited by law, that repeated warnings to this effect have been
given by the United States authorities, and that vessels both of Canada and the
United States have within the past two years been seized and condemned for killing
epals within these waters. It also appears that ou the Islands of St. George and St.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 309
dor the
vsealiiig
on then
iintially
Id have
use it is
vith my
nee the
id; per-
jtronger
t is read
'esented
British
.George
rse, the
respect;
id of his
le had a
)ple and
11 resist-
iment of
Governor
from Lord
a proposal
iisbiug ia
av of eacli
id between
a broad
res to call
latod tbo
in wbich
le Foreign
He said
connected
be author-
le wben it
)8 Minister
]jht to be
ling that
ly up to
ites Minis-
)f seals in
during tbe
msincHS of
of Alaska,
Sea as far
e meridian
b tbe seal
bave been
a and tbo
for killing
go and St.
Pnnl, dnring 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 citi/.ensof tliat country known as tbe 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 tlie use of this word "monopoly", which
is repeated ad nmiseam throughout the case. It appears, perhaps, for
the first time ofiicially here; but it has been adopted, and may possibly
account for the feeling exhibited by the British Commissioners in their
open and bitter antagonism to the killing as practised on the Pribilof
Islands.
From the very nature of the case it must be a monopoly. It is evident
that if safety and protection of seal can only be accomplished by killing
on land, the only persons who can do the killing on land are the 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. CouDERT. — Probably, because it is the only herd that is spoken
of; and I call attention to that expression. It is a mischievous one;
it is, in one sense, I think I may say without discourtesy, an improper
one. If it be a monopoly, it is simply so ex necessitate rei. It cannot
be otherwise than a monopoly. If you throw the business on the
islands open, so that it is not a monopoly, that simply means raiding,
and all parties agree that raiding means destruction. In fact, the
assertion of the right to kill on the islands (which is the monopoly 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 call attention)
sjiys with Gallic humour, sense, and justice that it is an impot sur lea
celibataires. But it is not necessary for me to depart, swerve — or as
Sir Charles Ensseli would call it — to "shy", from my subject. I am
simjily 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 yeai", and to no other persons whatever, ia it permitted to kill
a single seal within what is claimed as the limits of the Territory of Alaska.
That is true. We do not allow people to come on our islands and
kill our seals except with our permission.
It is evident, therefore, that there is no part of the year when citizens of any
country, with the sole exception of the Alaska Commercial Company, can legiti-
mately kill seals within the limits named ; and when Mr, Phelps stated to Lord Salis-
bury that no attempt had been made by the authorities of the United States to stop
the Ashing tliero of any vessels at the time wlien it was legitimate, his statement
should be road in conjunction with the fact that there is no period of tbe year when
it is legitimate for any vessels to lisb 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 Mehring's Sea
and the North Pacific Ocean.
Your Honours will see that even at that time — that is iv July 1888 —
the Canadians were well informed that killing of seals in the North
Pacific Ocean, was one of the grievances of which the United States
complain.
It is not clear from any information at present possessed that any pressing and
absolute neiessity exists for any such measures, so far as shown by the present con-
dition of that fishery in the North Pacific.
r'
310 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
i! .!:
I
May I not say tliat tliis is a very qualified denial and naturally a
qualified denial coming from an honourable official wbocan simply con-
tent himself, not with dr lying 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 botli 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 tlie 3l8t July 1887, it appears.
(1) Tliiit 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. It is not " 751 ", or " 753 " —
it is " 750". How that is arrived at, I do not know.
Sir Charles Eussell. — He is your own ofticial representative.
Mr CouDERT. — No doubt. That is what he says. Well, thoy 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 following
year as yearlings to the rookeries leaving thus a total mortality of 45 per cent, from
various causes at sea.
It needs hut 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 Facidc
Ocean.
That is, it must be increasing enormously.
The Agent in his Report says: "This vast lumber 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 us given in the memorandum attached to Mr. Bayard's letter, viz, 192,457
for the who^e world, or for the seals near to Behring's sea as follows:
Pribilof Islands 94,967
Commander iHlands and Robben Reef 41,893
Japan Islands 4,000
Northwtst coast of America 25,000
Ora total of 165,860
With an annual clear increase of millions, and an annual slaughter of less than
200,000 in the North Pacific Ocean, it surely cannot be contended that there is any
necessity for such stringent and exclusive measures as the one proposed in order to
preserve the seal fishery from threatened destruction. Not only would it appear
that the present rate of catch could be permitted, and a continual increase of the
total number of seals be assured, but it would seem that this annual take might be
many times multiplod 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 i^resent 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 1st November. For all practical purposes, so far as Canadian sealers are con-
cerned, it might as well read from the 1st January to the 31st December.
laturally a
(imply wm-
d absolute
n then pos-
that wlien
rties inter-
jxisted — so
greed that
erd should
nt in Alaska
bilof Islands,
ad St. George
or « 753"—
itative.
11, they are
Etving a mor-
the following
er cent, from
bhat an addi-
Nortb Pucitic
luable to the
ies could not
trusted, in
erage annual
r, viz, 192,457
94,967
41,893
4,000
25,000
165,860
of less than
; there is any
d in order to
iild it appear
icrease of the
ake might be
the present
ilof Islands
ke, without
IS of breed-
the 15th April
alers are con-
it.
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 311
I beg that the Tribunal will notice this — that any reasonable curtail-
tnent — any curtailment that is not purely nominal might as well be
from the first day of the year until the last. In that, I entirely agree
with the Commissioner. Abstinence is easier than moderation, D"^
Johnson said, as far an drink was concerned; and abstinence is easier
than moderation when it comes to this pelagic slaughter which holds
out a glittering reward for the time being without reference to the fatal
consequences in the future.
It is a well-known fact that seals do not begin to enter the Behring's Sea until the
middle or end of May; they have practically all left those v/ateis by tlio end of
October. The estabiishmeut of the projiosed close season, therefore, proliiUits the
taking of seals during the whole year. Even in that ca.se, if it were proposed to
make this close season oi)crative for all on the Islaiuis of St. Paul and St. George as
well as in the waters of the liehriug's Sea, it could at least bo 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.— It is:
Even in that case, if it were proposed to make this close season operative for all
on the Islands of St. Pawl and St. George as well as in the waters of tlie lieliringSea,
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 mouths of the proposed close sea-
son. The result would be that while all others would be prevented from killing a
seal in Behriiig Sea, the United States would possess a complete monopoly and the
eD'ect would be to render infinitely more valuable and maintaiu in x'crpetuity the
seal fisheries of the North Pacitic 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. 1 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 gatts and S{)ears 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 permitted me to find which can be of any use to the Counsel on the
other side on this question.
It is to bo noted that the area proposed by Mr. Bayard to be effected by the close
season virtually covers the whole portion of tl e Behring's Sea iu which the exclu-
i. i
C t:
■ i
M
',
j
J
1
-.1
1
'■■i
■
'
1
1 1
i
1:
312 " ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
sivo right of .seiilinrr has, (luring 1880 and 1887, been practically maintained by the
UnitiMl Stiites (Joveiiimcnt. To thin Ih added a part of the North Pacific Ocean,
niirtli 50-' of north liititiido, and whicdi (H>niniandH the a|>proach of the Heals to the
])as.s(;H leading into lieliring's Sea. By the adoption of this area and close season
the llnitetl States would gain, 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 detianee of international law is a question as to which
the Tribunal may have something to say; but certainly Mr. Bayard did
projmse this as the only just and reasonable way of protecting the
riglitsof the Unitod States.
And while this area would he held closed to all operations except to those of her
own scahrs on the Pribylof Isliinds, the northwest coast of Nortli /merica up to the
50th parallel of north latitude and the sealing areas on the north-eastern coast of
Asia would ho open to her as before.
Tlio device. . .
If successful, would feed and perpetuate the rookeries on St. Paul and St. George
Islands. . .
That 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 increatjed.
And add iininisnscly to tiieir value, while it cuts off at one blow the most valuable
por.ion of the high seas f'runi all participation by the sealers of all other Ucations.
It is to bo borne in mind that Canada's interest in this industry is a vital and
important one, that she luis had a very largo capital reninueratively employed in it,
and that while by the proposed plan the other Powers chiefly interested have their
com])eiisati(>ns, Canada has none. To her it 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 pro-
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
tlioso taken by tlie United States Company. So long as the fishery is not exhaiistcd,
London will, other things being equal, retain the advantage she now possesses in
tins 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-
iary advantage to a limited section other sulyects in London. Under this proposal
Russia wouhl lose nothing. Her vessels do not now pursue seals in that part of
Behring's Sea coded by her to the United States in 1867. Russia has valuable seal
islands of her own: the Commander Islands inBehring'sSea, andRobbeu Reef in the
Okhotsk Sea, on which there are valuable rookeries, and the Russian (jovernmeut
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 tlie Pribyloff Islands she draws now a yearly revenue of over
300,000 dollars. This would not only not be interfered with, bnt 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-
B(l by the
lie Ocean,
als to the
}H0 BDUSOn
rs held in
I.
to which
yard did
tiug the
ose of her
b up to the
n coast of
St. George
oolteries,
I be per-
it valuable
ifitions.
, vital and
oyed in it,
have their
;hu sealing
ads of the
Ion in p te-
le catching
kins taken
cly as do
BXhfiilHtJxl,
jssesses in
e of Her
eprivation
lallpecuu-
proposal
at part of
luable seal
leef in the
nvernnient
nie Alaska
e proposed
the estab-
ompany
ge in the
jtter was
lue of over
be enor-
under the
another
ng argu-
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 313
ment. It wonld be profitable to u.s to continue that industry. It wouhl
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 L'nited States, Canada would lose the
employment of a lucrative right long posseHsed, and this loss would be fatal to her
prosecution of the seal industry, and would be unrelieved by a single conipensatiou.
It is manifest from a perusal of Mr. Bayard's letter that the proposition is to i)rc-
vent the killing of seals during the close time by any process whatever within the
area set apart, except, of course, upon the Pribyloif Islands.
Forgetting that there is a close season on the Pribilof Islands from
the Ist of January to the .'31st of December. The closeseason 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 Pribilof
Islands, and that is the fact that these gentlemen will not understand.
Experienced sealers aver that by the present methods of hunting with gun and
spear not more than one in ton of the se.ils 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.
I am glad to have a Minister say that the use of the net iS not a
destructive method. That is one of the few methods that are i)rohib-
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 i)ropo8ed by any methods or by any person except by
the methods employed upon the Pribilof Islands and by the citizens of the United
States, who may, ibr the time beiug, enjoy the niouo))oly 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 efiective 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 onetime 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.
i
ft
314 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
The President. — If we hear it at any time it will be sufficient, of
course.
Mr. CouDERT. — I tliink it is not an element in tliis 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
Repulations, as to whether that mode of attacking the seals is to be
prohibited or not.
Mr.CouDEUT. — That is a question upon which I do not think any of
the counsel are in a position to help the Court.
Mr. Justice IIarlan. — 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 ditficulty of discriminating between males and females.
Mr. Coudert. — 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. Coudert. — I doubt it, Sir. I doubt it; because the sources of
information to which I have applied with some diligence are all in the
same papers that my learned friends must consult, and from which they
must also draw their knowledge; and 1 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. Coudert. — 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. — From one shore to another.
The President. — Not on the high seas. That would be impossible?
Mr. Coudert. — That would be impossible, of course. As I say, the
only importance attached to taking seals by nets is that the British
Commissioners recommend that it be interdicted. I do not think any-
one objects to the interdiction of nets. The Canadian sealers do not
use them, certainly. We do not use them on the Islands; and I do not
know that any body ever has used them. I may say here, although
this is somewhat anticipating, that from the British Commissioners
reports, it appears that there are two methods of destruction that have
become obsolete, or have never been used. The rifle has become 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
fflcient, of
'. think the
case.
re come to
Is is to be
ink any of
admitted
hat is that
lit one dif-
;males.
d discrim-
od net.
et is used
3 not used,
as taking
) it by the
President,
sources of
all in the
^hich they
nets have
is an aifi-
B man had
the Aleu-
link there
friend if I
laps?
[ catcb the
npossiblef
1 say, the
he British
hink any-
irs do not
id I do not
although
inissioners
1 that have
jome obso-
•o methotls
le shotgun
pon. This
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 316
destruction has grown from evolution. The original germ or proto-
plasm was the Indian sealer with a hungry belly and a spear as his only
capital, using the one to All 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 iu
mind that these »eaa 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 conllde, may
escape a musi^et 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 disajipeared with the improvement in fire-arms.
First came the riHe, which carried an enormous distance, and with a
deadly ball. That was better, and that was used. Then came the
breech-loading shotgun, with the buckshot scattering, of course, enor-
mously, wounding and maiming very often, but very often hitting;
and in many cases the seal is 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. That is the last in evolution.
The President. — Do the shot guns that are used now reach so far
as the ritle?
Mr. CouDBRT. — They do not reach quite so far as the rifle. Of
course the rifle, with the ball, will reach, theoretically, mu(;h 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
advjintage 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 corneas near to the se.al as
it is possible to come without frightening it away. For that purpose
the shotgun answers much better than the rifle.
Senator Morgan. — I will suggest to you just there, Mr.Coudert that
it would be entirely useless to shoot a seal at ihe distance of 100 yards
because it would sink before you could get to it. It would be lost
before you could get to it.
Mr. CouDERT. — Yes sir; that is one of the wfiys 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,
namely 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 drivi^ig
i k:
s f
f :;
316 ORAL AR({UMENT OF FRKDERICK R. COUUERT, ESQ.
I:i
Heals linH attained a tolerable .skill lie may be retained or lio may not
be retained, but the proportion of at least one halT must be tbc men
who niiwH twenty- live per cent of tlieir shots.
The President. — J>o you mean to say that this industry of sealinj;
on the coast or on the high seas, is carried on by men who are engaged
by the trades-unions?
Mr. CoUDERT. — Yes sir; I have it here. It is very cirioiis.
The President. — And submitted to such rules as you state!
Mr. Coudert. — Yes, sir.
The President. — I thought it was left to all.
Mr. Coudert. — Here is an extract from the iigrecment by tlie Se ' rs'
Association. [ am pleased at the question asked about the ne' It
has ])eruiitted me to anticipate sonunvhat, an<l to produ(;e this I am
reading, as I state for the benefit of my frieiuls on the otlier !•' o, from
the Case of the United States, at the bottom of page 102.
With the permission of the Tribunal, 1 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 wihicr tlian before tiroarnis were used, but it lias also added
largely to the numlter of inexperienced hunters eiigiifjed in sealing. It is only neees-
sary, in order to show how much the unskillful outnumber tlK^ skillful hunters, to
refer to tlie agreement entered into by the members of tlio Scalers' Association of
Victoria, British Columbia, for the season of 1891; tlie portion of the agreement
referring to this matter is as follows : " We also bind ourh^lves not to take more than
three experienced hunters in the sealing business on each vessel represented by ns,
said hunters to be engaged at the scale or lay adopted by this Association, as herein-
before particularly described; and we also agi( o tiiat all hunters reijuired in excens
of the three hunters above nuMitioned for oacli 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 vesselsowned or controlled by the members
of this Association, whether clearing from the port of Victoria or other i)()rts 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 1 ask you: What is it you are citing this to
establish? What is you;;' pr position?
Mr. Coudert. — I am trdkii.g of the enormous destruction that results
from pelagic sealing in the numnev in which it is now conducted.
Lord Hannen. — Does chat depend upon whether these rules of
trades-unions are observed or not?
Mr. Coudert. — It depends upon the skill of the huntsmen, to a great
degree. Your Lordship will find when I read the evidence, that a 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 center six percent or seven per cent of those
which he kills. It is important, therefore, in this connection, as explain-
ing what green hands are, what experienced hands are, what the expec-
tation may be of improving in this race for destruction, and as an
explanation for destruction in the past, to show that the meaiis of per-
fecting themselves in this business are shut off by regulations, which
are stronger and more powei-ful, very often, than the laws of the land.
Mr. Justice Harlan. — What did this Association mean by providing
fpr the employment of inexperienced hunters?
5.
) may not
) the iiieri
)f Healiiif;
) engaged
te!
10 Se ' ra'
no It
lis I am
f ■ ii, from
larka Just
lie propor-
b few years
I nlso a«l*le<l
only iH'fca-
Iniiitcrs, to
locintioii of
aKi'eeiiioiit
o more than
jitod by lis,
I, as hereiii-
3(1 in Pxci'MS
at tUe btisi-
boforo iiicn-
lio members
)rtH in Can-
led by auy
16 half the
ig this to
at results
ed.
rules of
to a great
lat a dis-
"Groeu
fire away
1 not lose
t of those
i explain -
he expec-
nd as an
18 of per-
is, which
the land,
iroviding
ORAL AROITMENT OF FUKDKRICK U. COUDKRT, ESQ.
317
Mr. CoUDERT. — It would botliis. I sujijuiso that in all those assooia-
tions the groat rule isociuallty — " liberty, oqiiality and fraternity" ; and
thoy \v<Mild not he ocpnd if one had ha<i five or six years' oxperioneo in
slatiixhtoring the seals and the other had had none. Tliereture there is
liberty to go into the business, o(|ua]ity by not porniittiiig tlio exiM'ri-
enood men to have an advantage, and hrotlifrlmod of the trades asso-
ciation, which clasps thom all in its arms, and gives tlieni all an oipnil
chance.
The President. — It aeoms to be international , it provides for Ameri-
can ports as well as for (Janadian ports.
Mr. CoUDERT. — Yes. Oh, we are brothers. There is only an imagi-
nary line between Sir .John's country and mine, nn<l we often f(»rget it
in our affecticm lor our neighbors.
Senator Morgan. — VN hero is the head of thisassoeiation at i)re8entt
Mr. CouDKRT. — In Victoria; and this is taken, as you will see, from
the liritish lilue I^)ok.
Sir Charles Russell — I think it is nonexistent now.
Mr. CoUDEiiT. — 1 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 riHes and
shot gV'i.s.
The President. — I am sure we have found it very Interesting.
Mr. CoiTDERT. — I stated to the learned Tribuinil how some of these
seals were lost. I will give you some statistics upon that, with a belief
that the court is interested in knowing i)recisoly the nature, the extent
and the destructive agency of tliis pelagic sealing. Upon this subject —
although it is branching oft" somewhat, it is also germane — I will read
from the Case, a few lines <mly, from page 11)4:
licsidos thoHe lost by wounding, in many canes, othor.s killed outri(;]it are not
tukon, because the spocific gravity of the seal beiiijj ^jreatcr than water it sinks
before it cau be sccnred. In order to isaveas many of the Ninkin^ seals as is possible,
each boat carries a gall", with a handle from ibnr to six I'eet long, with which to
grapple the eavrass, if the point where it sank can bo reached in time to do so. Of
<'ourHe in securing a sinking seal much de])end8 on the distanco from which the seal
was shot, the coinlition of the water, whether rough or smooth, and whether or not
darkene«l 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 killeil 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, jicrhaps because in many
instances a prompt boatman with a quick gjitf 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 ]>y their wounds. How tliey 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 Ave know from hearing their depositions and with-
out seeing the men, they .^ tate 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. in.
!^
SEVENTEENTH DAY, MAY 4^", 1893.
i '
The President. — If you are ready to proceed, Mr. Coudert, we are
ready to hear you.
JVIr. CouDEUT. — I had the lionour to call the attention of the Tribunal
yesterday, before the adjournment, to the difficulty which any lawyer
must lind in making clear tlie issues in the case. If we had any plead-
in{»s to guide us, we might on both sides bring down all the points and
facts to one or two or a few questions; but wiien 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 (sase.
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 And hereafter not to be questions in the case. Indeed from a
statement of our distinguished adversary, Sir Ciuirles liussell, I am
inclined to believe that most of the propositions of fact, which have
been laid down by my Associate Mr. Carter and which t mean to
sustain by ])roof, 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, I cannot forbear going some-
what extensively into the proofs.
Not only is there an absence of pleadings to guide the counsel and
the Court, but there is a mis-statement (I use it of course in the most
courteous sense) a misapprehension on the part of the counsel on the
other side of the real issues in the case — at least if they do not misap-
prehend them we do. The lawyers who di'ew this being lawyers, and
understanding how injportant it was that we should come before the
Court with issues, that is with allegations of an allirmative character
on the one side atvl denial on the other, have stated the points of dif-
ference as they understood them to exist: tli#y say tluit the issues are
clear. This is on page 5 of the argument of the British Counsel :
Was the Government lcf:[all,v jiistiHcd in seizing British vessels cngiiged in pehigio
sealing in Hehring Sea outside territorial waters?
Now I make bold to say that there is no such issue in this case. Nay
I go further and say that we are forbidden to discuss, and this high
Court is not authorized to decide, the issue tlius stated in the argument
of the Counsel, lioth nations reserved that question, or those questions
to themselves and although I .an free to confess that tlni decision of this
high Tribunal, on the questions of fact, may have, aiul, no doubt, wil),
have a most important bearing on any diplonuitic adjustment hereafter
to be made, yet all those mattery wliich relate to liability are expressly
excluded by the terms of the jreaty; an<l, 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. I have tiiought it necessai y 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 discufsion
should follow an entirely different course, Whether the vessels were
m
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 319
b, WO are
rribunal
y lawyer
ly plead-
lints and
,i)y aver-
s on the
facts are
mid take
lis which
d from a
ell, I am
icli have
mean to
e to seal-
y not per-
iig some-
nsel and
the most
el on the
at misap-
^'^ers, and
efore the
haracter
ts of dif-
ssues are
sel:
ill pelagic
se. Nay
this high
irgument
ne.stions
>n of this
>nbt, ml\
hereafter
xpressly
ot nnder-
de say is
?tate this
ement of
iscnfsion
sels were
properly an ested or not, whether the decision of our Court in Alaska
when the res was before it is linal or not, whether our CJovernnientwill
consent to abandon the effects of that decision, whetlic: the decision
fiiade by this Tribunal will necessarily decide tl»ose issues one way or
the otlier, 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 <leal
with the questions involved.
1 propose, with the ])ermission 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 ex])ect that they will be
admitted as facts with the understan<ling, of course, that they are to
be supported by reference in the Case to tlie testimony M'hich supports
these propositions. There are many proiwsitions which are admitted,
some which are very imperfecttly denied, and as to a few of which it
would appear that my learned friends have taken issue with us.
Jt 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 ]U'oposition8 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 succinctly. I aiu
reading from page 98 of our Case, the Case of the United States.
The pnp is born on the breediiif; grounds tlurinfj tlie mouths of .June or .July. Its
hiith usually oi-iMirs 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
]iounds, its head being abnormally largo for the size of its body; it is almost black
ill colour, being covered with a short hair, which changes to a silver-gray colour
after the pup learns to swim. These two grades of pui>s are distinguished by the
names "black pups" and "gray pups". The coat of hair is its only covering, the
uuder-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 at a birth. But that may be dismissed
from the consideratictn of the case; and it will be found that there is no
dispute betw< < n the t'vo sides as to the general fact that only one pup
is born at a bivl h. As the result of a singular phenomenon (and it is a
phenomenon, it tlie view of tlie British Commissioners as to the nature
of thisaniinal is •^rue) thisaciuaticor marine or pelagic animal, if born at)
sea, win diown. Birth in its native element, if 1 may call the native
element th'* eleiiient in which it is never born, — birth, at all events, at
sea is instantly punished by Nature's law with death; and a curious
iilus^r,; !on of this is sliewn by tlie fact that during one year when tl»o
winter Wiis extremely severe aiul lasted into the season when the Islands
were ge.ierally free in t leir approaches from ice, a number of the
mothers were unable to reach shore in time, the jiinis were born at sea,
and eveiy one of them perished. The importance of this consideration,
when you examine into tlie 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 1 will rend a few lines with tlie evidence which
supports the statement.
For the first six or eight wce\s of it« life the pup is confined entirely to the breed-
ing gionnds, being unable t(» swim. Mr. Thomas F. Morgan, for nearly twenty
years located <>m the l'ril>ilof Islands .''s one of the agents of tlie lessees, states that
he hu9 often s> u ; uujj pu|)8 washed otf by tlie surf and drowued. Dr. N. Jy, Uer^-
320 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
il-
I
foifl, for many .years resident physician on tbe Pribilof Islands, relates that a pnp
bein<r foinitl which had lost its mother, was placed near the water's edge in order
that it might swim to an adjoining rookery and percliance find its parent. Day after
day, he continues, this puj) was watched, but it would not go near the water, and .
neither did its mother r<;turn. After several days or so, a new employe of that season
only, and knowing nothing whatever of fur-seal life and habits, coming along that
way and linding 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. Mclutyre, a gentleman who will be often quoted here and who,
from his position and his education aul character, is entitled to belief
whenever he asserts a fact within his own knowledge, — Dr. Mclntyre,
Avho 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 icecJcs oW\ Tiiey 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
ccmtribute to its own necessities, sho drives it iiito the sea; tak' s li
with her teeth or her flippers, and carries it to the sea, coinp'-ls i< :m
swim, chastises it if it does not, and finally inculcates into it habii .^ .< iii'-r
make it, after that time, an airphibions 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 elibrt, — during a peiiod of weeks or of months, for we do not all
agree about the period, the seal is not amphibious but i)urely a terres-
trial animal. That is the time wheiv 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. CouDERT. — It is in the course of the process of weaning. I have
no doubt it is one of the first steps; but weaning does not take place
in those few weeks. The pup is gradually prepared, and the suckling
goes on for a period of months.
The President. — While the pup swims?
Mr. Coudert. — Kather while the pup is learning to swim ; while it is
playing about in the water. It is a long time before the pup goes to
any great length from the land.
The young become gradually accustomed to the water, they choose
sheltered spots, they play about the shore, they become familiarized
with the sea and when the season comes and they must go, they follov»
in the wake of the other animals.
The President. — And then they are weaned?
Mr. CouDENT. — And then they are wefied, 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 rei)ort of these gentlemen; and if I use anv severity of language
at times (which will never I hope pass the bo*. .;s of eai^ire courtesy
and respect), it is because that rei)ort, as I rei'l it, is j^anifestly au
apoloffia for pelagic sealing. These gentlemoTi — ;'enilemv. r. character,
of course, education, a»d iutelligence, or they isevei would have been
s i\
ORAL ARGUMENT OP FREDERICK R. COIIDERT, ESQ. 321
selected by Her Majesty's Government for tbese 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 snpi)ort pelagic sealing whatever
might be the result to the seals. JMy 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 a(!cept their assurances
witliout hesitation ; but, whatever they testify against us I have a right
to dispute; and whenever they testify ir. our favor I 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 squarel-' 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 jny inability to understand why
it was done.
Tlie British Commissioners say on page 63, 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 annmberof sources,
though it is, at the sauie time, improbable that iiudcr any cir'Mim.st;inc<!s the young
is at first fitted to maintiiin its existence for any length of time in the oix'u sea.
.'his is, however, not a matter of any great iniportiiuce, 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 <'annot
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 Parliamout). the testimony
of a Mr. Laing who had been pursuing this business. It requires two
citations. It is volume 3 of the Appendix to the British Case U, S. of
1892. There is this question on page 184:
Among all yearling grey pups there has never been anyone known to have found a
femalo? (A) Vos, it is a fact. I have heard a great deal of talk of females having
young on the kelp, too, but I do not think tliat is so. t<onie 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 sealf (A) Yes, and I have seen the pup so cut out
walk or move about the deok uf the vossol, aud I hav« tried to raise it. I have aUp
9 S, PT XH 21
J,
1
322 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
p] m
thrown it into tlio water, iuwl lias'o seen it swim about like a yoiniK tloj;. I have
seen it licop afloat for filtiicn minutes, as lou.n as tln' vessel was williiu sijjht. On
the islanils the mother si^al will take tlio youuj; and ion o tliem into the water to
teach them to swim. They will never take the water freely themselves for from six
weeks to two mouths.
It is only due to say tliat here is somotliiug that purports to be evi-
dence. Wheth«;r our friends will consider it evidence or not, I do not
know. They oiler it to us as «vidence, but I do not tliink tliey will
rely upon it. In case they omit it, 1 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
Iler Majesty's Government, volume 2, page 87.
Here is a gentlenuin who hi' . b»^en seal liuntiiig for G years. He was
a resident of the city of Vic' jria, and he says:
Now born pups swim if thretvn into the water. I remember one that I took from
a cow an(l ' h ; ow overboard that swam aftta- our boat for over an hour. It, however,
made so i.i ■ i"' e iliat I caught it again and killed it, as it interfered with our
hunting.
I make no • iment upon that; I siniply read it. We also assert as
a fact that the pup during the first few mouths 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 tlie Tresident of the h-arned Tribu-
nal as to the weauiug of the pup. The United States Case, pp. 106 and
107 says:
After learning to swim the pup sjiends its time on land and in the water, but the
greater portion is passed on land, until its linal departure, which takes place, gen-
erally about the middle of November, but the time dei)end8 a great deal upon the
weather.
lu 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 tliey are only driven away by the extreme cold and
the necessities of food, and their dei)arture, 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 seasou 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 nujthers for at
least three to four months after birth, and would jjerish if deprived of the same.
Others lix the ]teiiod of weaning at at least four mouths. Others say that the female
seal Buckles her young as long as it remains ou the islands. All agree that without
this nourishment the ])iip 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, caniu)t be given to a mass of young
seals, the seal perishes if the mother is killed.
The imiKutance 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 Aigunient as raised by the
subjects. I have selected some of the testinuuiy, and although the
whole of it is interesting and should be read, and although I shall take
the liberty of asking the Ccmrt to examine it, yet I do not think I am
justified iu occupying valuable time in reading it all myself, and 1 shall
:. I have
ifrht. On
) \vat«!r to
r from six
[> be evi-
I do not
Jiey will
uora will
aini>le of
r Case of
He was
took froiii
, however,
I with our
assert as
ependeiit
5 directly
3d Tribii-
). lOG and
er, but the
place, gen-
,1 upou the
very mild
ibow. It
cold and
of more
ich year,
season is
dent solely
I view of
ig of tbe
i(>rs for at
the same,
the female
at without
an aet'oinit
tleatli.
witb tbe
of yonng
ng a few
me, Part
d by the
oiigb tbe
ball take
ink I am
id 1 sball
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 323
tberefore select some of tbe most important witnesses, and sball read
wbat tbey say upon tbese subjects. As an ai)ology, let me Say, if I
am consuming mucb time, I am comforted by tbe retlection tbat I am
saving tbe Arbitrators some labor for wben tbcy consider tbe case tbey
will have become imbued witb tbe facts and tborougbly understand
tbcm. Thill will be an advantage wben my friends come to answer, as
the Court will then be fully ai)prised of the position tbat we take and
endeavor to sustain by testimony. The page is 127 of a volume which
for convenience has been printed aiul 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 tbe witnesses who have been most frequently
cited. From the permanency of his tenure (he was on the island seven
years), it is i)resumable he is a reliable man when he speaks of the
things be has seen. I consider myself at liberty to dispute the con-
clusions of any witness on my side, and on the other sitle, 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
bis testimony unless it is contradicted either by obvious facts or by
witnesses equally credible witb himself. JMr. Bryant who was in charge
of the islands from 1870 to 1877, says:
The pup is nnrsefl by its mother from its birth on the islands, the mother leaving
the islands at difl'ercnt intervals of time after the pup is 3 or 4 days old. I luive
seen pups whicli I had previously marked by a ribl)on — 1 suppose those belong to
us — lelt for three or lour days consecutively, the mothers going into the water to
feed or bathe. A mother seal will instantly recognize her ott'spring 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 tlie maternal
instinct given her to provide for her own oftspring and no other, will
not be satisfied until she has found her oftspring and nourished it.
The President. — Does not that contradict the assertion that when
tbe mother is killed, the pup nuist necessarily perish.
Mr. CoUDERT. — No, it sustains it. Perhaps I have not made myself
clear, or I do not understand tbe ([uestion.
The President. — If the pup takes milk from another nurse.
Mr. CoUDKRT. — The i)up tries to take ntilk, 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 ro the rights «)f prop-
erty, and tbe pup will go round poaching wlierever it can. No human
being can tell this Court whether it knows its mother or not. We may
infer if we please from its going about, as some do, that it does not
recognize its mother. I am inclined to think tbat this is no i)roof 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
I)up's theory is not accepted by the mother. She |)reserves her treasures
for her oftspring alone, and when she is dead then tbe fountain of life is
dried up. And let me here follow out the idea of the learned Pic Ident
and say that even if it were so — even if it were true that the cow will
i
I)
ii
i
324 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
permit any pup to suckle it, this fact would only be a mitigation, but
nut a cure, for the trouble ; because Nature supplies just enough. There
is no reason to suppose that she supplies an excess. If there are 10,0()0
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 nuist ensue because only 5,000 will
receive snfhcient nourishment. Of course the suilering would be miti-
gated. The i)up8 might get some little nourJ >- *■ '><>»•« -j thee,
and death might not be instantaneous and sure, but yei, 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. CouDEUT. — 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 sup]»ose that as in the case
of goats, or any other animal (other than cow he 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
oflFspring.
Mr. Coudert. — That is all. I want to read also from the evidence
of another witness, who has been freipieutly quoted, on page 129, who
has lived on the islands since 1809. Of course if he does not know all
about seal life ho must be a very stupid man, and if he makes a mis-
statement the probability is he does it intentionally. He says:
Until 1891 wo 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 sire 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. — Ko. The pups are found lull 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 leained 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.
stated
during
no evi-
, And
galoug
conomy
for their
and we
\ rather
e killed.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 325
And I want to have it well nndorstood — and the question put by the
learned I'resident makes nie 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 bo
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 i.he cows, and I
have noticed at the annual killing of pups for food in November that their stomachs
were always full of milk and nothing else, although the cows had left the islands
some days before, I have no knowledge of the pups obtaining sustenance of any kind
except that furnished by the cows; nor have I ever seen anything but milk in a dead
pup's stomach.
If this man is a truthful witness that part of the case is disposed of.
I will now read, from page 114 of our Case, a brief extract, although
I have already touched upon the same subject:
A cow, as soon as a pup is brought forth, begins to give it nourishment; the act
of nursing taking place on laud 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
tight olf 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-
sive experience, says :
A mother will at once recognise her pup by its cry, hobbling over a thousand
bleating pups to reach her own, and every other approaching her save this little
animal, she will drive away. These facts are veritied by mauy 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 oidy brietly extract passages. The Arbitrators will do us
the justice to observe thfit we have made every effort, and tiie 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 pnps by smelling them, and no seal will allow
any but her own pup to suck her.
Then, on page 140, there is a citation, also from Mr. Bryant, m hom 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 utarvation.
\-\
I
9 ' '
H
326 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
If he tells the truth, this subject ought to be piactioally disposed of.
It 18 not an inference; it is observation, not gness-w(nk. It is the state-
ment of a man who has had eyes and used them, and whose business
it was to use them in connection with this veiy matter.
Now we lind a priest on those Ishmds, Father Kushen, who says on
page 145:
No cow will Hiicklo any pup but her own, and I have often watched a cow driving
pnps from her until she found lior own. She knows her pup by smelling it.
Then says Mr. Mclntyre:
The pups do not ajtjtear to recognize theirown dams, but the mother distinguishes
her own ollspring with uiKsrring accuracy and allows no other to draw her milk.
And another witness, Anton MelovedoflT, 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
hilt her own. The i)up.s 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 pnp but her own, and I have often watched the pups
atti'inpt to suck cows, but they were always driven oil"; and this fact convinces uie
th.at tlie cow recognises her own pup and that the pup does not know its dam.
I have now given the High Tribunal the testimony that we produce
on this point. It seems to us that it is absolutely conclusive. In fact,
from the very nature of it, assuming it to be reliable, the result cannot
renuiin 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 i)eriod. lie 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 otiiers, I should say that others, being equally
credible, are entitled to be believed because their exjjerience is of the
highest order and of tiie most extensive character. But although Mr.
Macoun is brought forward as a witness, apparently, to dispute our
propo.sitions, I will submit to the Court that if there were no other
'testimony in the case than that of Mr. JNlaconn, the propositions stated
in supi)ort of tiie Case of the United States would there lind full sup-
port, and it sliould be taken as conclusive, so far as experience limited
in extent and in jwint of time can ever bo supposed to fix definitely a
scientific proposition.
I desire now to read IVfr. 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 au interesting manner.
On St. George LsLind, 1.5th .July, as I sat on the low clifls overlooking a pjvrt of
North Rookery, 1 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 ARCJUMENT OP FRKDEUICK R. OOIIDERT, KSQ. 327
says :
I saw throe cowh roiiio o.slioro. One of tlu'Hn was still jinivid, Kacli of tlio others
on roiniii^ out, turned her lieiul iiliout from side to side uttering at whort intervals a
cry used by most female seals as tln-y come asliore. In eacli case several ]»ui»s went
towards the cow, in one instauee liv<^ were alioui lior at one time. 'J'hese were smelt
or iiosetl over and shoved away, or struck jjently witli a llip])er, and one by one they
dro))i)cd otf. The cow tlien moved slowly hack towards the rear of the rookery.
She was " attached " by nearly every pup she paNsed close to. These she ])ut away
from her, callin;^ out from time to time as if for her own young oue. Amongst the
first pups that had ajiproadied her was ono that persistently followed her, attemitt-
ing to suck every time hIk^ stojjped, several times securing the teat, while the cow
nosed over other i)ups. It was evident,
Perhaps it would not Inive been as evident to the other and nioro
experienced men as to IMr. Macoun; but it was evident to hiiu.
that the mother seal was soarcliing 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 hesido
lier, tlie cow would stop at a pod of j)up8 and examine and smell every one of thenj.
Whenever this ])nj» attempted to suidc and was seen, or perhaps felt, by the mother
seal, it was pushed away and she moved on, I'ollowed as before by tho l)U]). Hho
readied at last a sniall harem near tho back of tho rookery, where she lay down on
her side and was soon asleep.
Still followed, you will observe, by this persistent pup! Tcnacem
propositi he certainlj'^ was; and, wheth'jr 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 sucl<, stopping whenever the cow awal<cncd, which
happened at very slmrt 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 .Tnly, on North rookery, St. George Island, a cow was seen by nie to
come from the water, and after calling out as if for her young one, she was api)roache(l
by several jmps, as had been noted fre(|uently before; and, as is usual when cows
come from the water, these pups attenijited 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 tho pup from her. Though the
pup continued following her, tho cow did not ccaso crying out at intervals iu tho
manner peculiar to them when calling for their young ones. Otlu^r pups came to
her, which she smelt in the nsual 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 the; 3 subjects which,
perhaps, our plainer men do not make as to the mental operations of
the cow in recognising her pup:
For wli'le the pup kept np with her most of the time, and was often beside her,
she contiuned 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-
gronnri, but, after reaching the niiiidle of it moved aliont to the right and left for
nmro than 15 minutes, tho pup following her, and lay down at last on a rock that
she had passed several times. Were tho puj) her own, there is no ap])arent reason
why she should not have lain down when first joined by it.
Probably she had reasons oi 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 h.ave 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
do jS not come into play.
In both cases referred to above, the pups pei'sisted in following the cows, though
repulsed by them, and, while in one inst.'inco 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 tho pup were hor own or not, voluntarily suckled it.
•;
i
328 OltAL AUGUMENT OP FREDERICK R. COUDERT, ESQ.
How tlie evident uncertiiiuty of a motlier cow could be explained to
this scientific gentleman, I am also at a loss to r.iderstand.
lustiUMOH Bimilar to tlicBo wore noted whenever any ponsideraLle time wus spent
in watcliing a ■ irtieular part of a rookery.
This is, in every case a nnmber of pups pursued the motlier and were
driven away, and finally she consented that one of the pups should
draw food from her.
At any time pnps might l>e neon nursing everywhere on the rookeries, hut it was
not often that a I'einah! Wiis acttially 8»^cn to come from tlie water, and, within a
short time, (ind a ]iiip to niirne, as would be expected if it were true tliat siie had
l)e<Mi a long distance out at sea, and perha])H many days absent from tlie rookery.
^VlH•n fenniles were seen to come from the sea and soon afterwards allow a pup to
nurse, it was generally under circumstances such as those above referred to.
If this happened only in the case of the cows coming from the sea
and not of those that were remaining on land, possibly a suggestion that
1 have heard made, but which I cannot give as evidence, for I do not
know that it is in the Case, nu»y 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.
(^n the 16th July, at Starry Artcol Rookery, St. George Island, I watched five
female seals come from the water at ditlerent times. All called out at intervals as if
for their young ones. As they slowly made their way among the harems many pups
attempted to nurse, but none were allowed to do so, and every one of these cows,
after wandering about for some time in an apparently aimless manner, lay down and
went to sleep without having given up any milk.
What can be stronger than that? Does it not outweigh any 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 liad instructed her, when she was born, that she should give this
only to her young. And in connection with this I would like to cite,
and I take great pleasure in citing, a gentleman as to whose 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
43(i — 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.
2. That when the mothers are killed, the young pups dying in consequence, are
found on the island.
ORAL ARGUMENT Of FREDERICK R. COUDERT, ESQ. 329
are
This is the ])oint thftt we consider extremely important to establish.
Then lie quotes Mr. Taylor who was on the islands in 1881; this is on
page 439 of tiie same book.
The witness tliinka there ia noiiie dnina<];e done in killing; tind shooting of the cows,
and leaving so ninny yonng withont tht-ir mothers. There wuiihl he less doiiht
respecting the cows heing shut, or hist 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 — (luring a certain period
of the year at least, is a terrestrial and quasi-doujestic animal. We
show that the pnp is entirely dependent upon its mother, and, as a cor-
ollary from which there can be no dissent, when the motiier is killed
under those circumstances the pup must perish. As I had the honour
to state to the Court yesterday, when a itelagic sealer kills a nursing
mother he kills the pup on the island with unerring accuracy. The
death of the jmp 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 i)up on shore, that
there is the destruction of three aninmls, and the skin of one only
secured, if there are no green hunters about, and only skillful ones who
are able to rescue the one that is shot before it sinks to the bottom of
the sea.
We also claim (and this is an admitted fact in the case) that the pup
migrates with others in tlie herd in the fall. As to the course of the^
migration of the herd, that is also practically admitted. 1 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 IJritish 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 attractioni
outside the Pribilof Islands.
The President. — You mean the cows and pupf ,
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 find make their common hiibitat 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 " beuch-mastors " 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 x)iace which
i
f
I;
)!'
ji
33l) ORAL ARGUMENT OF PRKDERICK R. COUDERT, ESQ.
iij'l!
}■ .i;!i
tlicy frequent tofj^etlicr iisa family or lu'nl. To in*', I coiifi'ss, it seoins
to verjfc upon iil>snr(llty to talk about a doiibio liahitiit lor tlione ani-
mals, a iiabiiat or home upon the land anil another upon a s|)aeo of
1,0(M> miles of ocean. They leave their home for food. Tlu'y are driven
away by the neeessities of climate. They never land at any other
])laee. They never live upon laml uid(>s.s on our islands, and 1 tliuik
we are .justified in sayinjf, 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 rea<l one or two extracts in order that 1
may uot ask the Oourt to take anytliinjjf for granted. 1 sele«'t from the
collated testimony jtafje S(}, a brief extract from the testimony of Mr.
Daniel Webster, and 1 do this with especial satisfaction, because Mr.
Webster is uot only an intelli;>ent and reliable man, but the JJritish
('On)mi8siouers themselves have spoken of him as a witness in whom
trust could be jdaced. lie entered the Islands with the United States
and ha;s lived tliere ever since and so conducted himself that even the
British Commissioners accept him as a reliable and truthful witness.
In my twonty-tlireo years' expericiico as a whalc^r in Heliring Sea and the North
racific, dnriiiR whiili time I visit«!(l every part of tiie eoast snrronndiuf; tlieso waters
and my siibseiincnt twenty-four years' experience on tlie seal iHlands in Hehrinj; and
Okhotsk seas, 1 have never known or heard of any phii'c wliere tlie Alaskan fnr-seals
Itreed exeept on the I'rihilof fj;r()np in Hehrinj;; i<ea. These islands are isolated and
seem to possess the necesstiry cliioMtii? eonilitions to make tlieni the favourite ))r<>ud-
injj; grounds of the Alaskan fnr seals, and it is here they eon<j;regate dnriny the snm-
mer months of eaeh year to briny forth and rear their youni^.
I shall uot multiply extracts for I conceive this to b« Hantially
conceded and with some slij^ht ditferences in ex[)ression, - ..y say the
British Commissioners themselves accede to this jiroposition. 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 oft" and go to some other place.
They do not tell us to what ])la(!e they might go. If they did we might
protect ourselves by acquiring those islands oi' lands wherever they may
be. But after all, with all respect for the ingouiity of the speculation,
it is only speculation, and as these seals have been going there for WO
years and they have never been treated so well on the Islands as they
are now, I think we may viow with com])osure the threat that they nuiy
leave us at some indefinite period for some undetined spot.
Mr. Justi(;e 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 l^y the
bulls. I will now read but t\vo or three lines from the deposition of
Mr. Laing. It is very brief, lie is one of the most experienced wit-
nesses. This is page 188 of V jlume 3 of the British Appendix.
Yott have never heard of any rookery along the coast? I never heard of one.
There is a rookery of sea lions off Quaen Charlotte Island, but I never heard of any
of seals.
Here I wish to call attention to another point, and one of consider-
able imi)ortance; and I am free to say I do not know whether there is
any dispitte about it or not. 1 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 t<i the
distinction:
The two great herds of fur-seals which frequent the Behring Sea and North Pacific
Ocean and make their homeB on the Pribilof Islands, respectively, are entirely dis-
tinct from each other.
ORAL AUGUMKNT OF rR«^DERI(K R. COUDERT, ESQ. 331
it seems
U'HO iiiii-
si)a('C of
0 driven
ly otiier
1 tlii.ik
lat tliere
■u'ticiilly
w tiiiit I
IVoni tlie
ly of Mr.
iiuse Mr.
) Jiritisli
Ml wllOIll
'(i States
even the
'itness.
the North
iL'80 waters
uhrinj; imd
III fur-Heals
iilateil and
rit(^ ))rt'eil-
J^ tllO 8I1II1-
4aiitially
y say the
They do
ptliods on
ler jdace.
we might
tliey may
ciihition,
e for 100
s as tliey
they may
il to show
mds and
d by the
osi(ion of
need wit-
X.
ird of one.
ard of any
consider-
there is
Ml ; but I
ly briefly
as to the
)rth Pacific
itirely dis-
That is a proposition wlii<'li we tliiiik is plainly aiul clearly established
by tlie testimony.
I will read npon this the statenient of tlio liritish Commissioners;
section JU8:
The facts already cited in connection with the ini;;ratioii of the seals on the east
side of the I'acitic, show that thi-se aniinalM enter and leave Iteliriii^ S<>a almost
entirely by the eastern i)asses throiiKli llio Aieiitiaii chain, and that only iiii'er
exee|)tional cirrMinistaiK-i-H, and under stress of weallier, are some yoiiiijj seals, while
on tlieir V'uy sonth, driven as far to the west as Atka liilaiid.
Mr. Justice IIaki.an. — Ts tiiat the westernmost island?
Mr. CouDKRT.— No. It is there.
\Mr. Jjunsiufi pointed it out on the map.]
it is only under e.\<'t'pti(mal cirenmstances that a few pu|)s, beinj;
light and weak, are driven by stress of weatlier as far west as tiie island
that Mr. Lansing has just pointe<l out.
No largo bodies of niij^ratiug seals are known to pass liear Attn Island, the west-
ernmost of the Aleutians.
That is still further west; the extreme island, nearest to the Com-
mander Islands.
And no yoiuiK seals have ever within memory been seen tlieri^ '^ iieso circiini-
stnnces, with others wlii(^li it is rot necessary to detail liere, are Hiinicient to denioii-
strale that the nniin miKnition-roiites of the sciils friM|iii'niin;; t!ie Coniinander IsiaiKls
do not touch the Aleutian diaiii, and there s ev«'ry reason to believe that although
ti<e seals become more or less coinmin<;leil in Keliriiig 8ea (luring the summer, the
tnigration-routos of the two sides tif the North Facilic are essentially distinct.
1 beg to call the special attention, of this High Tribunal, to that con-
cession on the ptart of llie British Commissioners.
We do not admit even the slightest commii'gling 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 racitic are essentially
distinct, in other words that these are two absolutely ditfcrent families
or herds of seals — that they do not commingle — that they are separate
and distinct in material p.articular" 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, enaMe it to be shown that the
fur-seals of the two sides of the North I'acitic 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 ia brliered that while to a certaiii extent transfers of individual seals or of
small groups occur, probably every year, between the Pribylof and Commander
tribes, that this is exceptional ratlier than normal. It is not believed that any volun-
tary or systeniiatic 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 nj)oii
one group might reaiiU 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 that is
cited by the British Commissioners is found in their Keport which your
n
f
fli
332 ORAL ARGUMENT OF FREDERICK R. CODDERT, ESQ.
Honours have before you; it ia a map illustratinj? the migration routes
and resorts of i^he fur-seals in tlie North PaciHc. I only call attention
to it to say that the Court will see how far apart they are. It is difficult
to believe that even a partial commi'-.gling of individual seals could
take place. I ask the Court to notice the suggestion, that a continual
harKssing of the oeals might drive the American seals tn Bussia or the
Kussian seals to America. What foundation there is for this i)erhapa
the Tribunal may be careful enough to enquire into. 1 can give no
light upon such a possibility. Upon what it is founded, I do not know,
and why it is to be presumed that these seals after an occupancy, to our
knowledge, of a full century, would start across an unknown ocean aud
make an interchange of domiciles, I repeat, I can not explain.
Then section 454 :
Tliere is no eviiletice whatever to sliow that any considerable hranch of the seal
tribe wliich lias its winter home off the coast of British Colnmbia resorts in siiuinier
to the Coniniantlcr Islands, whether vc'untarily or led thither in pnrsnit of ff.od-
iishes, and inqniries along the Alentian chain show that no rernlar migration rocto
follows it3 direction, whether to tlie north or soiith of Islands. It is certain tliat 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 Attn Island, on
the 173rd meridian east, is never visited by young seals, and therefore lies between
the regular autumn migration-routes of tlie 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, nnd they
never can commingle unless their habits should entirely change for
some reason which is not yet disclosed.
Now to close this branch of my quotations still borrowing from the
British Report and reading but three or four lines of section 224:
The broad aud general facts of the annual migration habits of the fnr-seal do not
appear to depend primarily npon the pursuit of food, but ratlier seem to be governed
by the instinctive resort to the breeiling 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 lo the Pribilof
Islands in the summer, and, of course, it is their instinct that sends them
off Trhen the severity of the wii'ter makes that habitat intolerable.
The President. — Is there any gieat 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 s])eak of the seals on the Coast of British
Columbia, we might also speak of the seals on the coast of Calilbrnia;
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 tlie 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 mouth or two on the Commander Islands and a mouth or two on the
Q.
ion rentes
attention
is difficnlt
eals could
, continual
jsia or the
is perhaps
n give no
not know,
ncy, to our
ocean and
Q.
I of the seal
,s in siiiiiinor
mit of l(,0(l-
;ration route
tain that the
3t (Irittert as
II Island, on
lies between
of and Corn-
main, it is
)ns are dis-
, and tliat
!, and they
jhange for
r from the
224:
r-Real do not
be governed
y the equally
;he cobl and
le Pribilof
ends them
erable.
le climate
sunshine
very cool
'hole year
h some of
It. When
of British
jalifornia;
tedly pass
uestion of
ave stated
perty. If
(uld spend
wo on the
ORAL ARGUMENT OF FREDERICK F 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 uiight be made, and it might be said
"If you will tell us how to recognize your seal", 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 tliey are to be identiiled. When the skin is removed from the
animals, it is 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 Conmiander skins, is there any difference? If there is
any difference, if there is a ditVerent species of animals, — if they are as
different as Jersey and Gaernsey 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, tliat
these are entirely distinct families.
We are now leaving the sphere of testimony in which the pelagic
sealers and the inhabitjints 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 tlie other side, in the Argument of
the United States, page 233. Of course, these gentlemen are men who
stand very high in commerce. Their positi')U 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. Bevingtoji 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 difi'erences between the three several aorta of skina last mentioned,
that is of the Commander Islands, the Pribiloff Islands, and the llob-
ben Islands,
are so marked aa to enable any person skilled in the business or accustomed to han-
dle the same to readily distlnsuish the skina of one catch from thoae 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 niln;;led with thoso belongini? to tlie
othiT c'usses. The skins of the Copper Island catch are distinguished from the skins
of the Alaska and Northwest,
Perhaps this high Tribunal will not uiul'nstand what the Northwest
catch may be. It is the Pribilof Island ; .svls killed by hunters. That
is what the northwest catch is. They ure all Alaska seals; they are
all ilie same family of seals, some killed with discrimination upon the
land, and the others killed without discrimination upon the sea:
Which two last-mentioned classea of skina appear to be nearly allied to each other
and are of the same general character, by reason of the fact that iu 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 ditference in the appearance of the fur of the Copper
and the other two classes of skins. This difference is diOlcuIt to deacribe to a ))«rHon
unaccustomed to handle skins, but it ia nevertheless clear and distinct to an expert,
and may be generally described by saying that tiic Copper skins are of a close, short
and shiny fur, piirticuhuiy down by the Hank, to a greater extent than the Alaska
and Northwest akina.
wm
h
334 ORAL ARGUMENT OK FREDERICK R. COUDERT, ESQ.
We will now quote Mr. Morgan who was the agent in 1891 of the
Knssiau Sealskin Company, of St. Petersburg. He was on the Pribilof
Islands in 1808 and 18G9, and from 1874 to 1887 as agent of the lessees.
His testimony is abstracted on ps^ge 235 of the same volume. He says:
The Alanka fiir-sval breeds, I am thorovghUj convinced ouhj upon the Prihilof Islands;
tbat I have been on the Alaska coast and also alonjjf tlie Alontian Islands; that at no
points have I over oltseived seals haul out on land exeejit at the I'ribilof Islands,
nor liavo I been able to obtain any authentic iufoiinatiou 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, aiul July to saitl
islands. I have observed certain bull-seals return year alter year to the same place
on the rookeries, and I have been inr<)rme<i by natives that have lived on the islands
that this is a vyell known fact, and has been observed by them so often that they
stilted it as an absolute fact.
I was ou the Bering Island at the same time that Sir George Baden-Powell and Dr.
George M. Dawson, the British representatives of the Bering Sea .loint Conunission,
were upon said island investigating the Russian sealerie.s upon the Komandorski
Islands; that I was present at an examination, which said Commissioners held, of
Sniegeroft", the chief of the natives ou the Beriug Island, who, prior to the cession
of the Pribiloff Islands by Russia to the I'nited .States, had resided ou St. Patil. one
of the Pribiloff Islands, and that since that time had been a resident on said Bering
Island, and during the latter part of said residence had occupied the position of
native chief, and as such superintended the taking and killing of fur-seals on said
Bering Island; that during said examination the Conunissioners through an inter-
preter, asked said Sniegeroff if there was any difference between the seals found on
the Pribiloff Islands and the seals found on the Komandorski Islands; that said Snie-
gerofl' at once replied that there was a difference, and ou 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 ho did not.
Now Mr. iNforgan is also engaged to a great extent and on a large
scale in business. He is engaged in dressing and dyeing the skins.
He says at page 230:
The skins belonging to these several catches are catalogued separately, sold sepa-
rately, f nd are of different values and necessarily, therefore, bring different prices
iu the market.
There is no better test after all than this. The money value of the
skin in the open niarket is shown not by the sales made iu this year, or
hist year, but m;ide year after year.
Sir Charles Kussell.— lie docs not say that on page 230.
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 iu the business to readily distinguish one from the other.
Mr. Justice Harlan. — You are not readitig from the printed Argu-
ment, and we are unable to follow you, INIr. Coudert.
Mv. Coudert. — I am reading from tlie summary of the evidence. It
is volume 2 of the appendix, page ~y(»[h
I will now read from page 237 of the Argument quoting from Mr.
Pohuid, i)age r)71 of the same book. i\Ir. I'oland's qualitications were
of the best. He is a subject of Her Majesty and the head of the firm
of P. 14. Poland and Son doing business at 110 (Jucon 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, lie ought to understand all about seal skins. His
191 of the
le Pribilof
lie lessees.
He says :
lof Islands;
; that at no
luf iHliiiids,
le to believe
iirly wiuter,
July to said
) same place
> the islands
!U that they
veil and Dr.
::!onnni88ion,
outandorski
lers held, of
the cession
st. Paul, one
said Berin}?
> position of
seals on said
gh an inter-
lils found on
it said Snie-
min^- stated
seals were a
and further,
m the Pribi-
ler question
/er mingled,
on a lar{?e
the skins.
y, sold sepa-
ereut prices
ue of the
is year, or
>.
evideuce.
as to enable
ii!r.
tod Argu-
leuce. It
from Mr.
ions were
f the lirni
ria Street
s, having
if there is
liua. Ilis
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 335
judgment is entitled to great respecf, and he says on page 571 of vol-
ume 2 of the Appendix to the ease 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 ])ersonally handled tlie samples of the skins dealt in by this tirm
and would himself have no dilhculty in distiugiiishiug the skins of the Copper Island
catch from the skins of tlio Alaska and north west catch, by reason of the fact that
in the raw state the Copper Island skins have a ligliter colour and the fur is rather
shorter in jiileaud of an inferior <|uality. The skins of each of the three classes have
diderent values and command ditlercnt prices in the market.
Xow I shall read some of the evidence of Mr. George Kice on page 573
of volume 2 of the Appeiulix to the United States Case. Mr. Hice, I
may say, is another of that elass of witnesses entitled to partieular
res])e('t.
[Tiie Tribunal then adjourned for a short time.]
The IMiKSiDENT. — Mr. (Joudert, if you are ready, we are.
Mr. CouDERT. — Tliaiik yon, Sir. I i)ropose, may it please you, Mr.
President and tlie 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, tiie intermingling of herds. I slmll 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 -±38, the testimony of Alexander McLean.
He is asked:
In your oiiiuion, 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 "^ame question on page 444 of the
same book :
In your oi)iuiou do the seals on the Russmn side iuteriniiighi witli those on tlie
Pacific side/ — (A). No, Sir, I do not think so. Tliey :iro dillcrent 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 lieports of
1880, page L'(i7, and mentioned by him in such a way that we have a
right to read their testim(»ny with the confidence that it will lie 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 jNIr. IMonis JMoss. Ilis testimony should be read
because of his high position in connection Avith this business,
Mr. iMorris Mdss testilies at page .'Ul of the same book, volume 2, of
the United States A])pendix. Mr. Moss, I should say, (and this is the
reason I have selected his testimony out of the great mass that 1 have
before me)- i-'^ the vice-i)resident of the Sealers' Association of Victoria,
presumably accpuiinted with the business, and testifying with knowl-
edge of the subject. He says:
Tliere are two great herds or armies of fur-seals that frequent the North Pacific
Ocean and Hehriug Sea. Tin y are ((nite distinct from eacli other, and do not inter-
mingle. The one army ap))earvS off the const of California, in the latter part of
December, and gradually work their way northward, and are joined by others coming,
apparently, from mid-ocean.
Tliey appear to travel in two columns, the outer column containing an army only
of bulls, and the inner one mostly cows and yearlings. Tliese columns are not coa-
pm
f i
336 ORAL ARGUMENT OF FREDERICK E. COUDERT, ESQ.
tinuons schools of sealH, but rather siiiall parties scuttered along. The colntnii
travelling along the British Culunibiu coast, head for the Pribilof Islands, their
natural breeding ground. The other army jtrocet'ds along the Jai)anese coast, and
head for the Commander and Robbeu Islands. 1 believe that the seals always return
to tLe place of their birth.
Perhaps I might have been satisfied with reailing this alone to the
Court, eniaiiatinjj from such a source, (whicli is certainly not one
favorable to the United States), and have chiimed that until it was
contradicted it should be considered conclusiv«^ upon the po'ut; 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. (3ou)3ERT. — 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. CouDERi. — He deals in skins — I do not think that he under-
takes to get them on the high seas. His is the safer and niore com-
fortable business cf remaining on land, and dealing with the skins
after they have been taken from the animals.
Mr. Gram. — j\Ir. 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 Tiavigating in various parts of the North
Pacific has resulted in the accnniulation of an overwhelming anu>nnt of cviilence
supporting the position that no constant separation exists between the seals, fre-
quenting the two sides of the Ocean.
Mr. Coudert. — Yes.
Mr. Gram. — And in the following pages there are reported a good
number of instances.
Mr. Coudert. — Y'es; I was coming to that subject. I am glad that
the learned Arbitrator called iriy 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 comtant sepa-
ration ejcifits between the seals frequenting tlie two sides of this ocean.
Does it mean anything more than what is stated by the British Com-
missioners as an exceptional ease 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, tinder a stronger form, of the
exceptional instances adduced by the British Commissioners ; that there
is nowhere an allej.ation — 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
lie column
iixis, tlieir
coast, and
ays return
ne to the
not one
til it was
it; but if
oirobora-
jsociation
irs' Asso-
:nowledge
ler side of
he under-
nore com-
the skins
raw your
e 136 and
on obtained
f tlie iNorth
of cviflcuce
0 Beuls, fre-
ed a good
ghid that
even the
at does it
lant sepa-
lis ocean,
tish Com-
ry whore?
find that
m, of the
;hat there
ish — that
distinct,
ir expres-
if it were
ut, on the
How their
rue sense
coustaut
union of them; and all that they claiui is tl!at no constant sepiuatioii
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 esi)ecial attention to the (|uesti(Hi,
and this is the result that they have readied; if their sui)i)leiiiental
rei)ort and defence of their own work is read, it will be found that they
did not go beyond that qualiticatiou of the general statement.
Mr. Gram. — Yes, but this evidence is jjrepared [tosterior to the Brit-
ish Coiiimissioiiers, of course, is it not — these instances which are
quoted here?
Mr. CouDERT. — What the evidence may be that is subsequent to
that, it is very difficult to tell. I think that probably it is intended to
show by the dealers in skins that there is a coiilusiou in the skins,
and I was coming to that very point.
Mr. Justice IIaklan. — But they mean more than that by their
evidence.
Mr. GrKAM. — Yes, much more than that.
Mr. Justice Harlan. — They intend more than that.
The President. — I suppose we must wait until tiie gentlemen them-
selves tell us what they mean, and tliat will come in time.
Mr. CouDERT. — They mean I think what I have stated, and also
what jirobably the learned Arbitrator suggL'sts, and had in mind tliat
iu crossing over the ocean seals have been I'ouiid, they say, all over the
water.
Mr. GRAM.~Yes.
Mr. CouDERT. — I think that is what they mean.
Mr. Gram. — At anytime — I think so.
Mr, Justice Harlan. — On the page referred to the head line is,
''statements particularly bearing on the intermingling of fur-seals iu
all parts of the Nortii Tacilic".
Mr. CoiDERT. — What page is your Honor reading from i?
Mr. Justice Harlan. — Page 2li of the British Counter Vixse Appen-
dix, volume 2. The object of that proof, as Judge Gram suggests is
to maintain the ])roposition that seals iiiterniingle at all times in all
parts of the Pacific.
Mr. CouDERT. — Assuming that to be true, 1 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 sim])ly 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 Pribil(»f 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 it is enough 1 think, (and it was impor-
tant) that one of the Arbitrators pointed out to yon, 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 eiKiuiry is made, in tlie tirst ]»lace
because it shows I am honored with the attention of the Arbitrators;
and secondly, that I ought to understand my case suihciently to be able
to answer a (luestion satisfactorily. 1 say with regard to that, that if
it is intended to say that there is this casual int«'rmingling — this cross-
ing of each others' lines, and a going to and coming from the water ter-
B S, PT XII lili
u ■_■
!•:
338 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
ritory — the maritime jurisdictiou — of the other, in the first place it ia
absolutely iiiuuaterial if that be so. In the second place it is abso-
lately 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 soutli. Dolosus versatur
in ffeneralibus, might apply. It is easy for a man to say, "I saw them
and the great Ocean was so thick that navigation was impeded".
Anybody could say that; but I would like to know, very much, Mr.
Captain of the sealing vessel, in what latitude you saw those? Is
your Log-book here? Produce your Log-book; and when you tell me
it was in a certain latitude, I have something to work upon, and I may
be able to satisfy the Court that that is just the place where you ought
to find seals. You find the Alaska seals going north, or Alaska seals
going south. You naturally would, at certain seasons find them there.
But, as the learned President said, I am speculating — I do not know
exactly what will be claimed, and perhaps it would be just as well on
that point to hear what our distinguished friends have to say. I think,
however, this is the answer, — and I desire to make it as satisfactory
as I can even at the expense of repetition — that even if the sea were
narrower, and it should be sui>posed 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 conies back makes the slightest difl'erence to my rights of
property, or aftects 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 — taese Loi.don
furriers — the most eminent men in the business — when they say they
can at once tell the dill'erence between a Pribylof skin or an Alaska
skin, (which is the same thing), and a Commander Island skin — if that
is true, they i)ut their foot at once upon all question with regard to
^
ice it ia
8 abso.
I weigh
carried
III, tbeu
is tlie
itnesses
ss.
ill over,
we can
,t would
versatur
iw them
ipeded".
ich, Mr.
owe ! Is
1 tell me
id I may
au ought
5ka seals
sm there,
lot know
8 well on
I think,
isfactory
sea were
ntending
ich other
ningliug,
than the
isey cows
righta of
ive char-
e learned
cial pro-
that they
ious that
we have
We con-
is essen-
jeeu con-
the other
ve taken
es urn ably
sses that
1 as Bev-
rge them
hen these
e Loi.don
say they
n Alaska
Q— if that
regard to
ORAL ARGUMENT OF FREDERICK R. COaDERT, ESQ. 339
inter-mingling or inter-mixture of blood. If it is true, that is the eml.
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. I soy our distinguished friends have undertaken
to cross-examine these witnesses, and of course have used nothing but
the methods which we would exjjcct 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 Appeiulix to the Counter-Case of Uer Britannic Ma-jesty'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
eli(!ited 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 tbe differeuce between Copper and Alaskan skins, I have always con-
sidered that the cliiot' dift'erence was that Alaskan fur was a letter qnaUty tliat is to
saj', denser than the fnr of the Copper Island seals. This is the dift'erence which
makes the Alaskan skins fetcli more in the market than Copper skins. The difter-
ence in price is also, I think, influenced by the fact that the jieoplo rt'sj)on8il»le for
8lan$>;htering the animals on the Pribylof Islands are more successful and skilled in
flaying, curing, and selecting, than the Copper Island peoxile.
That is simply his opinion, but he states the fact to be, without any
hesitation or mitigation, that the dil'ference which makes the Alaskan
skin fetch more, is, that the fur in of a better qualiti/, 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 ditterence 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 lineness 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 ])rice than the Copper skin, would not
that be of itself decisive of the (luestion ? In order to produce a larger
price it must be sui)erior, 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 diil'er-
ences between the Coi)i)ers 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 tisan the Alaska. Then there is this statenient
(and this, I suppose, if anything, is to be relied upon by the other side) :
In inspecting the shipmentM niade through Messrs. Lampson from the Pribiloft'
Islands, I liave from time to tiiiiti noticed the jin'sence amoni^st theui of skins which
were undistinguishable I'rom C<>i>[)<;r lsiiin<l skins, and also in the same way I have
noticed amongst (Joppor Islauil consignments, sl;ins wiiicli are evidently of tho
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 tbund a skin whith ho
wguld call a Copper skin, iu a cousigumeut of Alaskan skins. They
mn
340 ORAL ARGUMENT OF FREDERICK R. COUUERT, ESQ.
say that they have found certain skins which toucli each other — which
approach each other — perhaps some of the poorer sUiiis resembling bet-
ter skins of the other; but I find no where in the Case — (and if I am
wrong, when the time conies my friends may contradict me; i certainly
mean to state the fact as I uiulerstand it) — that any witness is willing
to place himself upon the fact, on his oath and on his honor, that ho
has found, in an Alaskan consijunment, a skin which he would declare
to be a Copper skin. The furthest he has ever gone is to say there are
some which tou<!h each other so closely that he would not like to state
the (lilference with any certainty.
We have the testimony of Mr. Kcvillon. Mr. llevillon has been
examined, and I road from Mr. Itcvillon's evidence on piige li30 of the
same volume.
The President. — Is that the same de])osition which is in your
Appendix? lie has also been exaniined by JNIr. Vignaud.
Mr. CoT'DEUT. — Tiiis is the cross-examination. Alter we submitted to
our friends on the other side our de])ositions, they availed themselves
of the right to cross examine. This is volume li of the Bering Sea
Arbitration Appendix to the Counter Case. 1 do iu)t want to comment
upon the fact, but I think 1 am entitled to suggest to the learned Tri-
bunal that this difference that they now speak of for the lirst time can-
not have stru(!k them as being very material since they did not mention
it in depositions intended, of course, to enlighten the Court «aud to
state the truth. They stated emjdiatically that they were able to dis-
tinguish the skins, that they could distinguish at all times an Alaska
from a Copper skin, and vice versa; and, of course, they were in good
faith when they made the statement, and it was only subsecjuently
that, under cross examination, they were reminded that there might bo
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 coidd 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 with this to draw the inference, which I
think I am right in drawing from the fact, that nmny of these gentle-
men, if not all, are easily and readily accessible, living in Loudon and
ready no doubt at the request of any of my learned friends to state all
that they know, and yet none of these have been cross-examined.
When I say none of those, 1 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 i)rotVered by us for
cross-examination; v,e have the crossexiiminatitm 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 i)osition of the
United States, that in some cases these animals belonging, as they do,
to the same general family of the brute creation, bear sucli a resem-
blance to ench other that taking a partir^ular skin, on the verge of an
extreme line it will resemble the skin of another branch of the same
family on anotiier line, liut I tind that no one of these gentlemen is
willing to testify on his oath that he found a Co]>per skin in an Alaska
consignment.
Senator Morgan. — Mr. Coudert, when you speak of Alaska con-
signments, do you mean that those are consignments made from th^
Pribilof Islands?
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 341
Mr. CouDERT. — Yes, I take it tluat Jipi)lies to the Nortli West sldns
as well as to those of the Pribilof Ishnids. That is what, you will per-
mit me to say, i)erhapa, in anticipation of the Judfiment, we call for
the sake of convenience and the assertion of i)rincii)le, ovr seals, and
that comprises all the Alaska seals and the Nortli-West catch.
The President. — Are yon aware wliich way the linssian seal skins
come to London. ])o they interminjile at Vicitoria with the other seals?
JNIr. CouDKRT. — They all f><) to London.
The Pkksidknt.— IJnt which way?
Mr. CouDERT. — Throufih San Francisco most of them, if not all of
them — they all find their way to London; and there they are rejiuhirly
sorted and dyed and diesscd to suit the fashion of the day.
The PRE8IDENT. — Is there not a jiXM'eral market in Victoria? Are
not the consignments made from there?
Sir KiciiARD Webster.— Ko, they are shipped straij;ht through.
The President. — Direct?
Lord IIannen. — Yes.
The President. — There is no fear of their being- mixed?
Lord IIannen. — No, there is no possibility of that.
Mr. Coudert. — No, I was reading l'ron» the testimony of Mr. ll«''vil-
Ion, and he is called upon to say that they do not buy by the sex of
the animal whose skin is oll'ered. Of course, we do ?n)t 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 np of leniale skins;
therefore the point of this statement in the way of cross-examination,
I confess I do not understand.
But Mr. Kevillon is asked his oi)inion with regard to monopolies. I
h.ave no doubt he is a very intelligent gentleman, and possibly his
opinion on monopolies, in an abstract way, may be of value. lUit 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, — rcjjd 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. Eevillon, however, was not so easily
frightened :
Would not the total snpiiression of all the pelagic sealinji; have the cirect of givinj;
the Company IcMsing tlie ishuids an absolute nion(>i)oly of tlie business in this cUiss of
seals? — [A.] Tliis might be so; I (b) not know, [li.] Well, assuming that tliat would
be so, do yon think tliat it would bo a result that would be bcnclicial to the fur-
seal business? — [A.] It de])en(is how the monojioly is managed, but sjx'aking gen-
erally I am against monojxilies, and in favor of a free markft. I thinli monopolies
iuj ure the progress of business.
We m.ay 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 oonnd 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 tor evidence upon this
subject, assuming that men dirter? There is in fact very little diii'er-
ence; I do not think that this shade of difference in the depositions is
wortli considering; but where wou.'-i the Tribunal look, where would a
man whose business it w.as to deal with the finances of a country inter-
ested in this busines look to know whether n- 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 marivct, the United
if.
f i
» f i
342
ORAL ARGUMENT OF FR1:DKRICK R. COUDKRT, ESQ.
ill
States seal skins of Alaska always bring a very nincli laifjcr price, not
a mere passings, pviitle fluctuation, but sonictliinf; radical, something
recogni/ctl, something I would say ]>hciiompnal, then you wouhl 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 lind whai the i)rices are. Of course, such of the Tribunal, it' any,
as have had occasion in Paris to buy theui, will know there is nothing
more expensive than a real "Peau d'Alaska"; but, ai)art from the
experience whi(!h may be individual, is(»lated, excejjtioiml and jxtssibly
misleading, what idea have we upon the subject of the maiketi/ Here,
we read again from volume 2, from whicih I have beou reading largely,
of that Ai)pendix to our Case, i)ago 572. Mr. IJice, a subject of Her
Majesty, who has been engaged in this business for 27 years, says:
Tliat the (liflerenco Ixstweon the sevcrnl classes of skins nro very niarkcfl, and
enable anybody who is skilled in the bnsincssor accnstonu-d to bandlin<r of fur seal
skins to distiti<:iiiHli the skins of one class from the skins wbii'h bclonj!; to cither of
the other two classes and these diflercnces are evidenced by the fact that the skins
obtain diU'erent prices in the market.
That the diH'ercnccs between the skins of the adnlt male seals and the adult female
seals are as marked as the differences between the skins of the two sexes of other
animals, and that in the Northwest catch from 85 to IIU per cent of the skins are of
the female aniniiil.
Dejjonent does not mean to state that these iiffnres are mathematically accurate,
bnt tliey are, in his Judgment, approximately exact.
Tlie diU'erence between the t'op])er Island catch and the Northwest and Alaska
catches, which two last-mentioned classes of skins of the fur-seal ajiiiarcntly belong
to the same family, arc such as to enable any person skilled in tlie business to dis-
tinguish the Cojipers from the Northwest and Alaska skins, or what I may call the
ISehrinjj Sea sealskins, but the manner in which the skins are distinguished is difti-
cnlt to describe to any person not aeenstoined to handling skins. The dilVerence
again between the Alaska and Northwest catches, although asdejKjnenthas said they
are of the same general family, are yet very marked by reason of the diU'erence 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 fa«t 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,
commnndcd, and do now command, difTerent prices in the markets; for instance, the
Alaska skins of the last year's catch tV.tchod about 12us. per skin ; the Copper skins of
the last year's catch fetched 68s. Cd. per skin.
And that dilferente is not the difl'erence 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 dill'erence. What is the use of dwell-
ing upon or discussing the question whether they are the same after
this?
Here is another of the same kind, Mr. Stamp, I read from volume 2,
page 574. This is Mr. William Chiirles Blatspiel Stamj). 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
nuirchiiut. That he has been engaged in that business for ui>wards of thirty years
and has been iu the habit of purchasing fur-seal skins during the whole of tlie time
that he has b(!en in business. That he has personally h. udled many thousnuds of
Bueh fur-seal skins and he has inspected the 8ami)les at practically every sale of fur-
pldns nuide in London during the whole of the time he has ')een in business.
Su'-ely 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 rUEDEUICK R. COUDEUT, ESQ. 343
In ronscqiicnre of llioso farts and of his knowledgo of tlio fiir-Ncal Hkin btiHiiitHS
he iia.H a Ki'in^ral »i'd detaik-d kiiowleilge of 1 ho history of the busiiicHS ot dealing in
fiir-st'iil skins in the City of London, and of tiiti character and dilfercuccs wltich
distin<,niislics the several kiuds of skitis cumiujj ou the niarkot.
TlitMi ne goes on:
Tlnit for many years last past the fiir-scal skins coniinj? on the TiOinlon nnirkct have
been known as tlio Ahiska <'atch, which are tlio skins of seals killed njion the I'ri-
bilof Islands sitnatcd in the Hohriug sea; second the Copper island catch which are
the skins of seals killed on the Kouiniandorski and Kobben Islands in the Russian
waters.
He then proceeds and I sliiill read what he says as to distinction:
The skins of these several catches are readily distiiif^nished from each other and
the skins of the dilTcrent sexes may bo as readily distinguished from each other as
skins of the dill'eront sexes of any other animal.
I beg yonr Honors to notice that, although it may not be directly
upon the jmint tliat wo are now exauiiiiing, this is material and very
nuiterial indeed in the case.
1 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 iuclincil to contra-
dict an estimate of upwards of 90 per cent.
Senator Morgan. — That North-West catch is the pela<;ic catch.
INIr. 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 difTerence in price.
Mr. CouDERT. — Yes, there is this dilfereuce 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 Kussell.— 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 Coi)per Islands the same process is
followed by Russia. We adopted the Itussian system, and it is carried
on, as I think, with certain imiuovenients, on the I'ribilof Islands; but
it is the same thing — wlien 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 hurling.
Is'ow, 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 dift'er-
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 lor the
purpose of showing the enormous number of females in the pelagic
catch. It is irrelevant to the point under discussion, but 1 take the
opportunity of giving the Court the evidence.
As to the difterence in ])ri(;e, let me, in C(ninection 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 Inrge, 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 coini)any that managed the busi-
ness on both sides; it is fair to assume they did it practically in the
same way.
imi
344 OIJAL AR(JUiMKNT OF rRKDHRlCK H. COUUKRT, ESQ.
! ii:
The ri!Ksri)KNT.— Tip to 1S!»()»
I\lr. CloiDKUT.— Up to IS'.Kt.
1'he I'ui'.siDKNT. — Tlicy were ATnoricim Irsscost
]SIr. (^oi'DKUT. — Yes, it was a ( Orpniatioii.
The IM{i;sii)i:nt. — Uiit tlicy have disni^rct'd or brolioii their arrnnjjo-
inciit witli Jtiissia '
iMr. (;oiM)F,ifT. — I think not. The lease exi)ire(l, and that is all.
Tiie IMfEsiDKNT. — And has not been renewed. Von stated yesterday
that it is a Jhissian Conipany. It is a separate, independent Jlu.ssian
('oni|)any, is it not?
Mr. ('oiDKifr. — Yes, there is a J«nssian Coiniiany, the Company
that op(!rated both i)la<!es. When the lease expired, a new lease was
nnid(^ with «»tlier ])artieson the I'ribylof Islands, and the liussians have
taken another Company.
The I'KES/ivKN'J". — The Ameiican h'ssees are not the same?
Mr. CoT^DF.iM". — No, it is a new Conipany.
The PuKSiiiKNT. — Are you aware tlii^ old Company ever complai.n d
of ])ela}i;ic sealing on the Itnssian si<lef
j\lr. Coi'DKRT. — 1 think not; 1 think Russia took eare there .shouid
be no eau.se of eomi)laint.
Sir Charles Kusshll. — Oh! no.
Mr. CouDEiJT. — Till lately, of course, when the pelafticj sealinj; was
prevented on our side beeause the United States viinli«'ated its rij^ht
l)y sto})pin,y; the ships; there is in> doubt alxuit that. Then I uiuler-
stand the efforts of the pelasie sealers took a westward direction, and
the Commander island .seals suffered in eonseiiuence. It was only
when we stopjx'd it in 18!>1.
The President. — Tiie Coj)per seals would be mixed pelajjic and f'^v
ritorial seals to-day, if theie isj^'la^ie sealing earried on on the liussian
side, westward — I would infer from that, that the skins from the Cop])er
islands or Kussian islands, if those seals would be both from i)elagic
sealing and from sealing on land, would be mixed. If there is pelagie
sealing carried on on that side, if that herd is subject to being liunted
on sea, there nuist be i)elagic sealing skins.
Sir Charles Ktjssell. — I think, M-. J'resident, we might renmve
ii possible misa])prehension 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 Jiering Sea or North
Pacific, because the jx-lagic sealing would not be carried on by the
same persons who carried on the land clubbing on the Commander
Islands. They would be sold distinct. Those who are lessees and in
charge of the Commander Islands did not jmictise ])elagic slaughter,
and the skins of those killed on land would not be mixed with those of
the pelagic catch.
The PuESiDENT. — But do they come as Copper island skins, or only
the other ones f
Sir Charles Eussell. — They would come as the North West catch.
■^^The President. — That is the (|uestion, you know.
Mr. CouDERT. — I understand that those killed by the pelagic oper-
ators on the other side of the Pa(!itic Ocean go as the Japan catch.
Sir KiOHARD Wehs I'ER. — That is (luite wrong.
The President. — That is why we desire information.
Mr. J'helps. — You will find in the atlidavits of the London furriers
a complete account of the numner in which this business is done. It is
only necessary to recur to that testimony to show how the skins reach
the Loudon market — to find out how it is done.
ORAL AHOUMKNT OV FUKDKlilCK R COUDKHT, ESQ. 345
H'liter,
I^Ir. ('<H'!)ERT. — And tliiit is wliiit I propose to nwl to the leaniod
Court.
As to tlio question tlie President put, the (^oiuiuiinder Ishind skins
are the same, whetlier kilh'd at sea or on land. 'J'liereisno dould ahoiit
tliat. J understand tli 't tiiose killed at sea on tlie western side of tliu
Paeilic Ocean i'n to tlie market as tln^ .lapan eateli.
Sir ('IIAKLKS liTiSSKLL. — No. tiiat is not so.
Mr. I'llKLl'S. — Tliey no as the ('opi)er or Commander Ishinds enteh.
Mr. Coi DKKT. — Well, I v. ill read tlieevidcnee on that. I am indehted
to the President for having; relieved the monotony of this Arjiument hy
throwin};' a brand of discord amonj^' ns.
The J'Ki;sii)KNT. — I wish to clear it \\]i.
Mr. CouDj'.UT. — It is extiemely refresiiiiij;' to me. I do not know if
it is to the Court, but it cannot be otherwise. I have just read to the
1 1 i{,di Tribunal the cross exandiiation of Mr. Stamp. I will have in
nnnd tlu' (|uestion i)ut, and se«^ what the fact is with rejiard t<» that.
Mr. .lustiee IIarlan. — Have you rea<l all of that l)ei)osition that you
want to read?
Mr. CouDKRT. — No; 1 have not. J am thankful to Mr. .Tustice
Harlan for callinjj; my attention to it. This is what this expert says:
The (litlVrcMUM'H l)et\v<'pn tlu- ('oiijipr Mini Aliiskii skins iirc dilliriilt to (Icscribi! ho
that tliey fiiii lin mi(h'rst(iinl liv iiiiy iicrsoii win) lias no inactical kintwlt'il",'*' of I'lii'H,
1»ut to anyoiif Hkillcil in the Imsiiics.s (lien- arc ajiinii'i'iit <lill'fit'iM'cs in colour iM'twccn
tlio Co]i])i'i' and AIuhIvU nkinH, unil a tlili'i'ienco in the lcn<;:tii and <|iialilics of tho
liaii's wliicli compose tlic fnr, and there are also apparent slight dilieri'iices in the
Hhajic of tho skins.
Tlie dilVercnccs between the skins of tho throe catches are so marked that they
liave always been expressed in the dKVerent ]iriceH olit;iineil for t lie skins. I liavo
attended the sales for many years, and urn able to make this statement from my own
knowledge. The avcirage jirices oblaiiied at the sales of the last year's catch, for
instance, were as follows: For tho Alaska skins, \'2'> shillings jxt skin; for the
Copper skins, OS shillings per skin; und for tho Northwest skins, 53 shillings per skin.
This corroborates what I have already read, and emphasizes the point
I want to make that although the dilference in \ ce between a muti-
lated skin, the skin of an animal ritldh d with .shot, and that of one
killed as we kill it on the islands, isidain and easily accounted for, yet
wdien yon find that the same comjiany, usinjj the same methods and
dealing with an animal of the same {general genns or s])ecies, when yon
lind the product of the industry is so dilVerent that in one ease the
skin brings JL'5s, and in the other abcmt one half, then the difference
in the thing itself is so manifest and so great that it cannot be whittled
away and mininused by tiny ]»retence that there is an intermixtuiv-.
Now with regard to the witnesses who have been cross-examined,
before I abambm this subject, I desire to read from the A])i)endix to
the British Case volume 2 i)p. 230 to 2.").'} — you will find there the testi-
mony. I will take the substance of it and state what the result is.
1 tfike one single declaration which is concurred in by a very large
nutnber — 27 1 think — of these witnesses.
We have such witnesses as Mr. Kichard Henry Poland, William Henry
Smith, Thomas Ince, Sydney Poland, — I think 1 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 front 2,'3U to 25;J to verify
the accuracy of my sumnnng up.
That the fur of the Alaskan seal is of a better qnality and denser than that of the
Coi)per seal, and that the dili'ereuco makes the latter skius less valnable than the
former.
346 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
This statement, I say, is subscribed to by 27 London furriers, and
this is thr? compivrisoii between tlie two classes of slcins, in these
respective jurisdictions under the control of the snine party.
1 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 oii page 244. This is the testi-
mony of Mr. Alfred Fraser. It \f taken from the United States second
volume, but it is quoted verbutim here, and my learned triends will
l>robably not care to exami'.e the book. If they do, it is on pages 554
to 558. It is tiid testimony of Mr. Alfred Fraser who is a subject of
Her Britannic Majesty, and resides in the city of Brooklyn.
lie 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 tlie skins,
he says, sold by 0. M. Lampsou and Co, of which large Arm he was a
member. He adds:
Deponent is further of the opinion, from his long ohservation and handling of the
sIcinH of the several catchoB, that tlio skins of the Alaslta and Copper ratelies are
readily distinguishable from each other, and that the herds from which snth 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 t'ice versa.
It is hardly possible that this man who nad "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 r/Kins of the several
catches is so marked that in his judgment ho would, for instance have had no ditU-
culty, had there been included among 100,000 skins in the Alaska catch 1,000 skins
of tiie Copper catch, in distinguishing the 1,000 Copper skins iiiul separating them
from the 99,000 Alaska skins, or that any other person with equal or less experience
in the handling of skins, would he ecjually able to distinguish them.
And in the same way de})onent thinks, from his own personal experience in han-
dling skins that he would have no difticulty 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 ha\ 9 no difticulty whatever in separating the sliins 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 Kdvillion Freres say that they never
buy or sell by sex. It is never mentioned in any sale catalogue. " We
buy lots which are made up according to sizes," etc. Are there any
witnesses to whom you can refer me, who appear to have had the duty
in the course of their business, I mean, of ascertaining to what sex the
skins belong? Of course we have a number of statements, varying
largely. Some of the statements go to as high as 90 per cent of females.
Mr. CouDERT. — Yes, sir; even 95 per cent.
Lord Hannen. — I want to knowui)on what basis that is determined.
Mr. CouDER'i'. — There is abundant testimony, over\> helming 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 wi( ness.
Lord Hannen. — Or /'oso business it is to observe it — what man's
duty it is to observe wh'>^lier a skin is a male or a female skiuf
1
iers, and
in these
learned
ing from
ho testi-
!S second
nds will
ages 554
ibject of
vith this
hundred
lie skins,
he was a
injj of the
:it«;he8 are
Hui'li Hkins
) clussified
ts of skius
iionsands
^h a phe-
Quiixtme
he several
id no (lifti-
1,000 skius
itiiig them
expeiieuce
ice ill lian-
iiis of the
!;o by one
specially
[ortb West
?
ey never
"We
here any
the duty
t sex the
varying
females.
ermined.
ng testi-
witness
f) declare
le such a
at man's
!
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 347
Mr. CoxTDERT. — Tn the first place, you will observe, when they come
from the Islands, tliey are all males; there are no female skins.
Lord Hannen. — No; I am dealing with the otlier.
Mr. CouDERT. — Wlien they come from the otlier 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 cliaract'uistics.
Lord IiANNEN. — I w^anted you to distinguish, if you can, between
E^villon freres, who say that they. . .
Mr. CoiTDEBT. — Tliey do not buy by sex. The i^male skin is always
a good skin of itself, and there is no distinction when skins are sold and
b(uigiit. If a mercimnt 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 tliat tliey determine
it at once; and when it comes to the pelagic question. . .
The President. — No, they do not all say that. Tlmt depends on the
stage of the process. AVlien the skins are salted and prepared, they
cannot distinguish the sex. Some of them have said tliat. 1 think
Eevillon has sai<l that.
Senator Morgan. — Mr. Coudert, do I understand you to say that
there i» any testimony in this Case to the eifect that after a skin has
been salted and prepared for market, there is no further op])ortunity 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 tliink the
British Commissioners admit that, and state it.
Lord Hannen. — Tlie ])oint of my questi(m is this: I wanted to see
whether at any stage of tlie process, from killing to selling in the mar-
ket, any man's attention is necessarily drawn to the question of sex.
JMr. Coudert. — Let me read, directly in answer to Lord Ilannen's
question, from volume 2 of the Appendix to Iler Majesty's Counter-
Case, page 232. This is one of their witnesses ; and let me observe that
this is to meet our testimony, that tlie female catch represented 90 or
95 per cent. One witness, Grebnitzky, I tliink, says it is 95 per cent;
but in order to meet tliis — and this will be an answer to tlie Arbitra-
tor's question — our frioids on the other side produced witnesses to
minimize the pro])ortion; and Mr. Moxon, of the firm of Culverwell,
ISrooks and Comjiany, is called and sworn, and he says in answer to one
of these questions:
Q. Have yon, with the view to infonninK yourself on the qncstion, lately exam-
ined any consifjiiinonts of north-west seal skirm? — A, Yes, last week.
This is in answer to Loi'd riannen's <|uestion.
I went carefully through a parcel of 2,000, and cnme to the conclusion that the
percentaj^e of females did not exceed 75 per cent at the most.
Now, here is a man; an expert —
Sir Charles IIussell. — Will you kindly read the question imme-
diately before that.
Mr. Coudert.— Yes sir:
Q. Have yon ever hnd to consider the proportion of femnlcs in the north-west
cnt<'hf — A. Not nntil this question arose, hecniiHe prior to that no ilislinetiim was
ever made, either in buyinjf skins or in si'lliii;; them. They are simply sorted in
quality and si/e, and not lor the question of sex.
■■■
348 ORAL ARGUMENT OF FREDERICK R. COUDEKT, ESQ.
But he luul 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 tlmt it was at least 75 i)er cent.
The President. — But in fact, you liave not answered Lord TTannen's
question, you know. I supimse you cannot. Perha])s nobody can.
Mr. CouDERT. — If nobody can, I am sure I cannot, Mr. President;
but I would not like to make sncli an admission, and I am sure you
would not exi>e('t me, even l)y 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 liandling 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 ujacliinery of the business there is an individual whose othce and
function it is to pass upon the sex of the animal. . .
Lord ITannen. — No, no — anyone who, in the course of his business,
would iind it necessary to decide the (piestion of sex.
Mr. CoFDERT. — I would answer it in this way, even if it should be
an imperfect answer: Those 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 — perlia])S in almost every
case, to a greater or less extent; and in examining tliem, the question
of sex presents itself to the examiner. An experienced examiner will
tell you just how many of each sex there are; and ])erhaps — that is a
mere hyjiothesis — this has become more marked of late years for this
reason, that the number of female skins in the market is only a recent
product. Until recently there were no female skins. It was only about
187(5, 1878, 1879, 1880 and 1881 that this business began and took its
ju'ogression, that the three ships grew into titty, 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 1 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 T 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 nudes" ; shall
I not satisfy the Court upon this question, assuming that I shall pro-
duce such testimony?
The President. — I suppose those are mostly sealers?
Mr. CouDERT. — I'urricrs, sir. I dismiss the sealers.
The President. — Will you just allow me to read an extract from
Rcvillon. Kdvilhm says:
That all ilie slsiiis l)nn<jlit by the snid firm of Rt'villon Frores are dyed in France,
and therel'orc the skinw i)ass inuhT Diir eyes iii the lollowinji; Cduditions: (1) in salt
when wo buy them in I,on(lt)u; (2) dressed; (3>dyed. That dejionent believes that
tlie lirm of Ri'villoii Freres is by far the lar<;<"st ilrm of furriers and fur-dealers in
Frauee; that the '•roater ])art of tlie skins liounlit by Revillou Freres are made u])
into frarmeiits, ehiaUs and mantles, but that some of the skins after having been
dyed are sold to otiier manntaeturcrs.
Tliat tlie sales of sealskins by the said firm of Revillou Freres have amounted for
the last twenty years to about 4,000,000 francs ])er year.
He knows the skins as they are in these three conditions, — in the very
condition of salt when they come from London. He proceeds:
That later on, from the year 1878, we have noticed in the London market seal-
skins called Victoria or Northwest coast skins, the quantity of which is variable, but
0 the force
ony to the
TTaniien-8
ly can.
['resident;
1 sure you
m put any
;alve to he
lese skins,
V, and tliat
nsig;ninent
the inner-
! ofUce and
5 business,
shouhl be
il valuable,
examined,
most every
le question
iniiner will
— that is a
irs for this
ly a recent
only about
nd took its
into a hun-
)l)serve the
li a definite
the Court,
iiu^ and we
} show that
■ I produce
d one hnn-
les " ; shall
shall pro-
Ltract from
c(l in France,
is: (1) ill siiU
liclievcs tliiit
'm-dealt'is in
iiro made u])
having been
anioiintcd for
-in the very
ds:
luarkrt soal-
I variable, but
«■
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
349
which has continually increased until last j'ear, when the total quantity was held at
80,00() 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 tlm female seal. The thinness of the hair
u])(>n tiie flanks seems to conlirm this assertion, althoii<>;h it is impossible for us to
test the absolute truth of this statement for ourselves, for when the seals have been
dressed the sijiiis of the mamma' disajipfar. At any rate the oin)doymcnt of these
skins is mueli 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? throiioh hia
hands in twenty years, and who has receivo-d them in tliree different
conditions, first, in salt, when he buys them from London: and yet ho
says it is impossible to distinifuish tlie sex.
Mr. CouDERT. — I am quite aware, Mr. President, that Mr. K6villou
made that statement.
The President. — Perhaps it is contradicted by others?
Mr. CouDERT. — I have tried to reconcile it with the other te.stimony ;
and it may be that Mr. Kevillon is not as strong upon this point as
others, althougli his opinion is that there was this hirge proportion of
female skins. Jt may be that he, being the head of the firm, attending
perhaps to tlie sales, had not given it the attention that others had.
But I say now, aud I shall to-morrow morning jnoduee 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 ex])erts can distinguish ;
that the other side, in the British Commissioners' Jteport, atbnits 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 tliat it is ditlicidt to determine the sex alter the skins have been
dressed. Is not the sex more easily distinguished before they are
dressed ?
Mr. CouDERT. — \'es, sir. Tliere is abundant testimony upon that;
and with the pernussion 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 dellect a little from the ordimiry
course; but 1 can assure the lligli <'ourtof Arbitration that I appreciate
the importance of this point, it is one upon wliicii we rely and we are
very confident, respectfully confident tliat the character and amount of
testimony that we produce is such as to leave no (piestion on the
subject.
Senator Morgan. — Mr. Coudert, at the time the question was put to
you by Lord llannen, some half an hour ago 1 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. — 1 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 (pu'stions.
Lord IlANNEN. — I am very sorry if 1 have detiected you from your
argumeut.
M
pp
■ 1; I
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 tbe Arbitrators does nie the honor to
interrupt me.
The President. — We have favored you to-day in that way.
Mr. CouDERT. — Not more than you sliould, 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 nujy
be interesting to read one single deposition to know what the general
nature of this industry is, how it is conducted nnd what its particulai-
elements may be ; and we do uow 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
Larapson, Baronet, on page 505 of the second volume of the Appendix
to the Case of the United States, lie has been engaged in tliis 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) Depoiieut says that what may be described as the fur-skin bnainoss has been
built up, that is tbo ])roduet, the fur-seal skins, have been niiide an arliolo of t'iishioii
and connnerce, and the sales of such skins liir<^ely iucreiised and the methods of
dressing and dyeing the same have been jjcrlected almost entirely throufi'h the inllu-
ence and joint endeavors of the Alaska (Jommercial Company, tlie North American
Commercial CDaipany, tlie Russian Seal Skin Company, deponent's own tirm, and
the lirm 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 cai>i-
tal and upon which there is dependent a large number of workmen and employes.
The amount of capital from time to time invested in the business is correctly stated,
deponent believes, by Mr. Toichmann, at as much as £1,001), 000, and until witliin a
year or two the numbers of persons deiicnding upon the industry for their sn]>port
has likewise been correctly stated by Mr. reichmann, 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.
JJuring the last two years the diminution and irregularity of the supjdy of fur
and seal skins has caused some decrease in the amount of i)ersou8 engiiged 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 dei>()nent is
informed, are not skilled in any other kind of ))Usin(!8M, and should the fur-seal
industry cease, dei)oncnt believes that these perst»ns would bo obliged to master
some other trade or means of liveliliood.
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 Ihi)
supply of fur-seal skins should be regular and cctnstant so that intending linyers
may be able to know beforehaml ap]troximatcly what the prices of tiieir stock in
trade are going to be, and that the ])eople engaged in the business may have before-
hand a reasonably disliuite notion of wjiat thi^y shall be able to count uiton.
(5) Dej)onent has no doubt but that it is necessary in order to maintain the indus-
try that steps should be taken to iireservc the existence of the seal herd in tlie North
Pacilic, Ocean and Behriug Sea from the fate which has overtaken the herils in tiie
South Seas. Of the steps, if any, which are necessary, in order to accomi)lish 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 tlie present time exist, but it is obvious to
deponent's mind that regulations of some kind imposed by somebody who has authcu'-
ity and power to enforce tlieni are necessary to i)rtvent the roolceries in the Nortli
Pacilic Ocean from suli'ering the fate of the rookcriei in the Soutiiern Atlantic and
Facilic seas, where ilei)()neut is informed no rostiicUons were at. any time even
attempted to be imjiosed.
This is the language of Sir George Lampson, under date of April 23,
18U2j and I may say in that connection, in order to show the enormous
consider
honor to
an I like,
me ques-
It may
5 general
articular
est intbr-
sources.
' views of
n anion J*"
ir George
Vppendix
this biisi-
ss before
agraph 4.
f the tinui
S3 has been
oof fasliioii
luetlioils of
;li the inlin-
ii Aiiierican
u iirin, and
I^ondou.
I important
imt of cai>i-
[l ein|ilo.vc8.
^otly stated,
il within a
leir 8ii]>iiort
t 2,00(» i>er-
tlioni hav-
pi>ly of fur
a<;ed in the
lecrease has
dejioncnt is
Hio iiir-seul
1 to master
nf, vital ele-
is tliat thti
linji; liuyers
ir stock in
lavo before-
lOII.
1 tlio iiidiis-
nthe North
lerds in tlio
mplisli this
uo personal
obvious to
lias antlior-
u the Nortli
tlantic and
time even
April 23,
enormous
n
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 351
experience that must necessarily have been acquired by these gentle-
men, that they have sold four-flfths 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 satisiied, 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
dilierence is between the breeding and the hauling grounds. Those of
the honorable Arbitrators who have not examined the question, will be
curious perha])8 to see, and interested to learn how the instinct of tlu^se
animals guides them to make their respective homes on their general
abode. 1 am reading from the Case of the United States, at page 1)1,
where it is said:
The "breeding grounds" or "breeding rookeries" (the areas occupied by the
breeding seals and tiieir 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 smootli 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
siioken of in our Case :
The "hauling grounds" (areas occupied by the non breeding seals) are the sandy
beaches at one side of tlie breedii;g grounds, or tlie smoother spaees back of and
contiguous to the bree<Iing seals. The areas covered by the rookeries on the respeif-
tive islands vary considerably, being in the ratio of about seven or eight on St. Paul
to one on St, George.
It has appeared all through the Case that St. George was smaller
than St. Paul, and that there was a very much smaller number of
seals on it. St. Paul is lower t'lan St. Geoige, 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
populatiim on the two islands.
1 will not dwell upon this any further. "VVe also state, and that i)roi)-
osition is not disi)uted, 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 lirst 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 liussia, this industry, established by liussia and carried on by
her, was intelligently carried on with a due discrimination as to sex.
We introduced no innovation, excejjt 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.
F^
352 ORAL AUGUMENT OP FREDERICK R. COUDERT, ESQ.
The British Coininissioners say:
Among tlio lirst of tlie more striiifjeiit ineiisures iulopted was tlie restriction of kill-
ing to males, wbicU followed from the discovery that ii much larger number of males
Were born than were actually re(iuired for service on the breeding rookeries.
This waa the great secret. Until it was discovered and i)ut into
etVect tlie wsecretot" cultivating tlie 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 Itussians soon discovered this, and long before the
United States came into power through the purchase of the islands, the
killing was coulined to the young nude seals.
1 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 lo, liO or
25, w'hether it is 40 or 50. There is evidence upon this all through the
Case. The British Commissioners state certain figures, and they rely
upon the British Cyclopaedia, which was i)rinted fifty years ago, to state
that according to the ordinary and general rule, the family consisted of
one male and 40, 50 and even (iO females. But it is not important when
we recollect that the seal is a polygamous animal, and that a large 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.
1 say, therefore, I will not dwell upon that subject of the average
nund)er in the family. 1 do not consider it is material, as the facts are
plainly shown that there is a suHicient number of males for the fenniles.
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 pro])er 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 iirst and remaining on the rookeries waiting patiently for
weeks without fooil ; then they come in rotation. But there is a general
mixture of the family about the end of .luly and then the distinction
between the breeding grounds and the hauling grounds is broken up;
and the severe line of demarcation between the older members of the
household and the younger members disappears. Then many of the
larger ones which we have called the bachelors — that is the name under
which they are known — are allowed to mingle with the other animals,
the older ones, the mothers, the cows and the rest of them. The hauling
l)lace after this ]neseut.- a confused appearance. The nice lines of
deniarcation have been obliterated.
The male seal when six or seven years of age goes upon the breeding
grounds. You will remember that the seals are killed on the island
up to the age of live 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. 1 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 renu'mber that Mr. Carter adverted to the remedies
suggested by the British Couimissioners 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 jirotecteil zone of .twenty miles, subject to a gradual
iucrease upon the United States agreeing to suspend the killing or to
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 353
lofkill-
of luiilea
ut into
long as
re weie
lit WHS
ore the
ids, the
females
t which
■», 20 or
uj>h the
my rely
to state
sistetl of
ut when
ge num-
obvious
circuin-
average
Facts are
females,
lud read
0 ; but it
J at their
at a cer-
tely, the
eutly for
I general
stinctioii
•ken up;
rs of the
ly of the
lie under
animals,
> hauling
lines of
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 bow likely it is
that the pelagic sealers will lind 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 jilace to determine whether the sugges-
tion of a twenty mile zone deserves even passing attention.
Now I read from the Case, page llo.
Necessarily al'ttT a few days of iinrsiii^ lier ',/iip the cow is compelled to seek food
in order to provider snfliciont nourisliiiient for her oHspring. Soon after coition she
leaves the pup on the rookery and goes into tho sea, and as the prp 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-
luscs, but squids Hcem to bo their princi]ial diet, showing tho seals are surface feeders.
On account of the nuiiilier of seals on the islands tish are very scarce in the neighbor-
ing waters; this necessitates the cow going many miles in search of her food.
And now is the important statement as to the distancevS:
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 th(! testimony of many
experienced sealers, who have taken nursing females a hundred miles and over from
tho islands, and C'ai)t. Olsen.of the steam schooner Anna livck, states through the
Victoria Daily Colonist, of August (5,1^87 (which is published in the British Hlue
Book, 1890, C-(J131. p. 84), that anyone who knows anything of sealing is aware that
such a charge (caldiing seals in Alaskan waters within three leagues of the shore) is
ridiculous, as wo never look for seals within twenty miles of shore.
This may explain why that twenty mile zone was adopted by the
Conunissioners:
They are caught all the way from between twenty and oue hundred and fifty miles
oft' the land. Capt. Dyer, of the seized sealing schooner Alfred Adams, confirmed
the above statement.
The Tribunal thereupon adjourned until Friday, May 5, at 11:30 a. m.
B S, PT XII-
-23
breeding
le island
breeding
in search
)on this,
u imi)or-
rs of the
remedies
lethreat-
MitU'iiieu
aid that
1, gradual
ing or to
EIGHTEENTH DAY, MAY 5™, 1893.
Mr. CouDEBT. — I propose, with the ])eriniasioii of the learned Presi-
dent and the Court, to resume tlie reading of extracts from tlui United
States Case on page 115. Tiie extracts that I shall read are on very
important topics, and the statciuientg 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 mirsinp; lier ])up tlie cow is coini)olle(l to seek food
in order to provide sutiHcifnt uonriahiiieDt for her ort"K))rinfj. Soon ■M'tcr coition she
leaves the pii]) on tlie rookery and goes into tiie sen, and as the pup gets older and
stronger these excursions lengthen accordingly until she is sonjetiines absent from
the rookeries for a week at a time.
The food of all classes of fur-seals consists of 8(iuidH, lishos, crustaceans and
niolluscB, but squids seem to be their principal diet, siiowing tlie seals are surface
feeders. On account of tiie number of seals on the inlands lisii are very 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
rjokeries on these feeding excursions. This i'act is borne out l)y the testimony of
•uany experienced sealers, who have taken nursing females a hundred miles and over
from t1;e islands, and Captain Olsen, of the steam scjiooner Anna Heck, states,
through the Victoria Daily Colonist, of August lith, 1887 (which is iiublished in the
Brithh Blue Bouk, 18!tU, C-OIIU, page 81), th;it anyone who knows anything of sealing
is aware that such a cliarge (catching seals in Alaskan waters within three leagues
of the shore) is ridiculous, as we never look for seals witliin 20 miles of shore, 'they
are caught all the way from between 2(» and 150 miles otl' the land. Captain Dyer,
of the seized sealing schooner Alfred Adams, conlirmed the above statement by say-
ing: "Wo had never taken a seal within 60 miles of IJnalaska.nor nearer St. I'aul
than 60 miles south of it." — Among the deposit ions taken before Mr. A. R. Milne, col-
lector of customs of the port of Victoria, Ihitisli Columbia, several of the deponents
give testimony as to the usual sealing distance from the Pribilof Islands while in
Beliring Sea. Captain William Petit, present master and part owner of the steamer
Mischief, gives such distance as from 60 to 100 miles, and states that seals are found
all along that distance from land in largo niimiiers. Captiiin Wentworth Evelyn
Ji.'iker, master of the Canadian schooner C. 11. Tnpper, and formerly master of tlie
schooner I'iva, says that the distance, from land was, i'rom thirty to one hundred
miles, usually sixty miles. And ('iii)tain William (Jox, master of the schooner Saji-
phire, places the principal hunting ground at one hundred miles from the islands of
St. (ieorge and St. Paul. Captain L. (}. Shejiard, of the IMiited States Kevenue
Marine, who seized several vessels while sealing in Beliring Sea in 1887 and 1889,
states, "I have seen the milk come from the carcasses of dead females lying on the
decks of sealing vessels which were more than a hundred miles from the Pribilof
Isliinds!" 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 Beliring 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
senrch for food is clearly sliowu by the "Seal Chart" compiled from the observations
of the American cruisers during their cruises in Beliring Sea in .luly, 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 isl.iiids is not remarkable, as
the seals are very rajiid swimmers and ]>osses8 great endurance. Thomas Mowat
Escjuire, insjiector 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 FR?:DERICK R. COUDERT, ESQ.
355
kal)le, as
Mowat
ol' the
lakes the
following statement, which corroborjites the fmcifoinjj: Captain Honalil Mcliean, one
of our most snccesHfiil sealing caiitains, and one of tlie lirst to eiitcr into tlie biisi-
iifss of tracking sculs from California to IScliring Sea, inloriiis me lie has Jinowu
bands of seals to travel one hundred to two hundred miles a day, feeding and sleep-
ing tUiring a ])ortion of this time. Captain Uryant. witli long «N]ii'ri(n(e as master
mariner of a whaling vessel, states that he is eonvim^ed that a seal can swim more
rapidly than any species of lisli, and that a female could leave the islands, go to tho
fishing grounds a hiindrttU miles distant and easily return the same day. lint in
case thest! exeiirsioiis consumed a longer time, the iieciiliar physical economy of the
pup seal makes it possil)le for it to exist several days without nonrishment.
Now let me, before iiiis.siiig to any other subject, eiiU the attention of
the Court to tlie enormous amount of viihiable information contained
iu tliose few brief extracts, and to assure tiie Court, as the Court may
readily satisfy itself, that every one of tlu'se statenu'utvS is substanti-
ated not only on its face, as I have .shown, but also by a larjie nuiss of
indepeuilent testimony whicli it is injpossildc to discredit; you there
have most important facts bearin.u' on some ot the vital questions iu
the case. You will understand now how it is that these nursiuf;
mothers are killed 150 miles from the land, or even more, as they are
lull of milk, and how it is that the unfortunate i)ui»s at home are killed
by starvation. You will also understand that it is dillicult for the
Counsel of the United States to speak with bccomiufj;' patience of the
scheme proposed by the IJritisli Commissioners when they ]>ropo.se to
establish a ])rotective zone of L'O miles about the islands, when it is
manifest that this woii'd be absolutely useless, for the destructive
process only bejfins beyond that line and it is simply the semblance of
granting sometiiing while really extending the privileges of pelagic
sealing. You will certainly iind that no pelagic sealer, liowever zeal-
ous in the practice of his so called iiulustry will object to that schenui.
lie 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 lish, and it is also
apparent tliac there are feeding grounds, that is, ])laces where enor-
mous masses of iisli congregate and to whi<!h the seals resort. When
I say seals, 1 mean, ofcour.se, only female seals, because the males, the
bulls, never leave the islands. The young aninuils stay around the
islands, disporting themselves iu 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 nuist feed tiujir young by feeding tiicm-
selves, lirst go with their enormous facilities of locomotion, — I might
say unparalleled facilities of locomotion, — to these feeding grounds
which they know, and tliere they are pursued, they are slaughtered.
Hence the overwhelming preponderance of pelagic destruction is among
the females.
The i'liESiDKNT. — Is there any evidence that those feeding grounds
are kuown — that they are located in some i)articular jthice?
JNlr. CouDERT. — There is this evidence, as stated in the book, that
there are feeding grounds and that the seals congregate there; they
are found there in great masses.
The President. — Are they certain points which are known, and of
which the latitude and longitude may be described?
Mr. CouDERT. — It is dillicult 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 tiie islands, to which these mother
seals resort in great numbers, and, of course, they are pursued there
and slaughtered.
Sir Charles Kussell. — Will my learned friend point to any evi-
dence that locates these iecding grounds?
1^!
356 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
Mr. CouuERT. — r caiiiiot loctite tlicin, but I say tliat thero is testi-
mony tlio feeding jiiouiuls me <>() miles and 100 miles o\Y.
Senator INIoHCiAN. — I uiideistaiHl 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. CoUDEUT. — And that they are at great distances from the island,
the seals congregate for the i>uri»oses of food and are found there in
great numbeis, and it is the only way in which you can explain it.
There is nothing else.
The I'RESlUENT. — Do you thiidi those feeding giounds might be
excepted by establishing a zone?
Mr. CouDERT. — No, they are too variable. Of course, they change.
The PRESIUENT. — That was the jmrport of the (piestion of my learned
friend.
Mr. OouDERT. — They change, and it is stated in the case that there
are feeding grounds to whi<!h (iicse animals res(»rt at a great distance
from the islands and it is a mockery to talk of restricting the zone to
20 miles.
The President. — 1 would like to ask if there is any evidence that
these seals met at such a distance from the PrU)iI()f Islands are always
seals wanderirig from the islands or may they be seals swarming
towards the islands.
Mr. CouDFKT. — No, they are our seals. That is conceded in this
way: the Uritish Commissioners themselves say (and, as I have said,
the value of a concession from them is great — 1 conceive it to be even
more valuable than one from my learned friend, Sir Charles llussell) —
they say, certain females in milk are (taught <(t fireat ((iNtanccs and there-
fore, presumably, from the rrihitof Ifslancls. There is no pretence that
there are any others tlu're, and it is a fact in the case (1 am not talking
now of disputed facts) that all these seals at some time during the year
land and live and stay there; and wiicn they leave, they always leave
with the aiimns reverlendi. The animioi rerertendi 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 i)up can remain after a few days or weeks, when he has
acquired some strength, a considerable time without food.
The President. — Will you be kind enough to remind me again what
is the distance from the Pribylof Islands to the Alaskan continent.
Mr. CoUDERT. — A little over 200 miles and it is 400 or 500 to Russia
the other side.
Sir Charles IIussell. — The nearest land is between two and three
hundred miles away.
Mr. CouDERT. — To America that is the nearest land.
Sir Charles Russell. — The learned President was asking about
the nearest land.
Mr. CouDERT. — He asked the distance to Alaska.
The President. — I meant to the continent.
Mr. CouDEiiT. — 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 tlu^ other side of the Pribi-
lof Islands? Are they towards Russia or America — do you know about
that?
Lord Hannen. — I thiidc you will tind that 182 miles is the distance
from the islands to the nearest part of the Aleutian chain.
ORAL AUGUMENT OF FREDERICK U. C(JUIJEliT, ESt^. 357
what
Sir KiciiARi) Wkhsiek. — Tlie President spoke of the coiitiiiciit, my
liord.
Tlie JMfESiDKNT.— The eontinout is tli*^ iioareHt \y,nt.
Lord llANNEN. — No, I think yon will tiiid that is the nearest. [Indi-
catinjr.J
Mr. (JoUDEiJT. — Witii regard to the qnesiion tii(^ learned President
asked, of < onise they vary. There are schools of cod tish, bnt they are
mostly south and west of the Pribilof Islands, as 1 nnderstand.
The PiiESiDENT. — The i>elaj;i(' sealing jioes on. on the west of the
Islands quite as much as between the islands and the eontinent.
Mr. CouDiniT. — Ves.
The Pkesident. — It yoes on all round
Mr. CdFUKKT. — 1 will call, a little lat( on, the attention of the Court
to a chart on that subject. I would prefer to wait until I reach that
l)oint in the case. The nearest land is within 200 miles.
Mr. Guam. — Arc there not a jiieat quautitv tish near to the Pribi-
loll' Islands?
JMr. CoiTDKit'J'.— No, Sir; it inay be that they have come there, but
there is a lar^e niiinbcr of seals, and they naturally would be driven ort"
or destroyed. Jiut the evidence is clear, Mr. Arl»itrator, that the fjrcat
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 ])retend that they get seals within those short distances.
But 1 feel justiticd in calling the attention of the Court most s]»ecially
to what I Inive read, beeause it is a foundation upon which mueh of
this case rests — the habits of the mother >''al; ami there is no doubt
(and if there were any doubt Ave should .soon remove it by the testi-
mony that I shall read) that a great i)art of thedestruc^tion comes from
the killing of tlie nursing mothei-. 1, i)erhaps, do not iittatdi as mueh
importance to this feature as son»e persons might, because I think the
great and the radical crime is to kill fejnales at all. The female that is
killed under ])reteMce or with the.justitication that it is not in that con-
dition to day,if itis young and healthy will be in that condition to-mor-
row. It is the possibility — the more tlian ])ossibility — the certainty that
you introduce death by wholesale. True it is more appalling to (mr
sense of humanity, it is something that all the legislation of every coun-
try here rej)resented re])idl)atesand condemns, that a female in thateon-
dition slnmld be killed, and therefore this consideration emphasizes the
point. It aggravates the oifcnce. 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 sioge ; and
Avhere our system is ])reeminently good, and wherein it has been ])re-
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 ado])ted by Kussia, and because that rule was
kept up by America, you are here today. If it had not been for this
there would have been no seals to trouble you. or to o(;cupy your atten-
tion. J\ray I ask the Arbitrators to note — 1 shall not call special atten-
tion to it now — that in the first volume of our Ap])endix there are some
valuable, and interesting charts, which s])eak for themselves, ami whieli
give information alxuit 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.
\
858
OUAL AROIJMKNT OV KUKI)F,I{I('K U. COUDKRT, E8Q.
This ^'ivcs nilicj;!) iiiforiicitioii iiiitl it would l:iko ii iiVi'ni ilciil of
tiiiH^ tor iiic! to I'cihl tliciii oi- to study tlicui IxM'urc ilic (.'ouit; hut it' tlie
Court lius any doubt in its mind jibout the. truth of thi^t stiitcnuMit in the
CH8e whicli HuiiiH ii|> till' wliolo situiition, it should l)C' found in those
<;hiirta— nuiy I take the liberty of HU};'^M'stiu}; tliat the learned l*resident
is not lookinj; at one of the eluirts 1 call iittention to — it is a valuable one,
but it isa tid)Ie<)f vessels. liesides t hut we have, theehartsshowin^jf the
loealities in whiiihtlM'.Ncsscls were seized. Thereaie several betweenthe
two partes that 1 mentioned.
(Jeneral Fostkh. — Vn'^e 574 is cme of the most desniptive.
JMr. CouDEUT. — Xothinji' <',iin be rui)re eonelusi\e than that beeause
tlie loealities where the Heals were taken are pointed out, from day to
day, fnnn the lo«:s.
The PuKSiDENT. — It seems m<)atly between the Pribilof Islands and
the Aleutian ehain.
Mr. CoUDKiiT.— T()wards the Houth and West,
Sir CiiAiiLKS Ki ssKi,L. — The South and West, J think you mean?
Mr. ('oiil)Kll'l'.— 8onlli. South-east, and South-west, are the i)rineipal
loealities or direetions in wlii(;h these vessels are found.
That of eourse only rei)resents the i'aw vessels that were aetually
seized. The Tribunal will understand that these nnii»s are made from
materials furnished by the sealinj;' vessels themselves — that these data
are taken from the lo;; books of these vessels.
The PKESIDKNT. — Mr. (Joudert, you will observe that these maps are
not quite eonelusive and (•()ini)lete as to the loeality — the place-s — where
the seals have been taken, because as my learned eolleajiue Mr. .Iusti(!e
Jlarlan suj^fiests the i>laces wheie the sealiii;;' vessels have been seized
upon or wliere they ha\ e eiuised is mostly indieaU'd as lying betwe«'n
the I'ribilof Islands and the Aleutian chain, that is to say, in the very
route of the herds, as swimmin};' towards the I'ribilof islands.
Ml'. Justice Harlan. — They might have been swimming away from
the islands.
The President. — Yes.
Mr. CouDBRT. — l>ut they had all gone to the islands before that.
They run up in A])ril. ]\Iay and June.
Tlie i'RESiDENT, — The seizures are more important than the place
where they are made.
3lr. Justice Harlan. — Mr. Coudert means to say as I understand it,
that taking the date and the jdace together it proves that at a given
distance from the island, ascertained from these logs, seals were taken
iu milk.
Mr. CouDERT. — Yea.
Mr. Justice Harlan. — And therefore the seals had travelled that
long distance from the island while pups were on the land.
Mr. CoiiDERT. — Yes.
Sir Charles Uisskll. — AVill my learned friend jioint to any evi-
dence showing that, because these dates are all given and they are in
July and vVugust. The herd, as my friend calls it, breaks up in July.
Mr. Justice Harlan. — I did nor so understand it.
Sir Charles Kl'ssell. — 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 ]\ir. Coudert was discussing was
as to whether seals in milk were taken at a long distance from the
Islands.
ORAL AROUMKNT OK FRKDMRICK R. COI'DKRT, Ksq. 3.'>i)
(Icill of
t if tlio
t ill tliti
II those
esideiit
l)Ie one,
:\\\ii tlie
► eeiitlie
because
1 (lay to
I ids and
mean'?
•rincipal
aetnally
(le from
ese data
naiis are
i — wliere
'. ,)nsti(M^
Ml seized
between
the very
/ay from
jie that.
le ]>laee
■stand it,
a given
ire taken
lied that
any evi-
ey are in
1 in July.
II process
spirit to
lite clear,
ssiug was
from the
Sir Cm Ain-KS ItussKlJ.. — V«'s; but llicse cliiirts do not show that
ut all.
iMr. .liis(i(!e IIarlan. — Do not these charts slutw wliere the seizures
took place?
Sir Ciiy\Ri,KS Kissi:i,L.— Yes, but not the place of takiii}; of the
cows ill milk.
Mr. Justice IIarlan. — No. Mr. Coiidcrt is arguiiifi I'lom htciility and
tunc, because he had bclorc that argued, that according t<» all tlie jiroof,
th<; seals had ])assed that |ioiiitand reached the IMibilof islands before
August, and therefore wlieii they were found in August round there, it
meant that tiie seals had left the J'ribilof Isliuids bt'fore August. 1
am not speaking of the soundness of the argument, but simjily indicat-
ing what 1 understood.
Sir CiiAKLES ]{i tssKi.L. — I am merely ]»oinling out that the chart
does not indicate that cows were taken at all, still less that they were
cows in milk.
Air. Justice Hari-AN. — The (ihart would not indicate that.
Mr. CouDERT. — Of course, the chart does not indicate that. A chart
is not intended to indicuite that.
Sir CirARLF-s Ki.ssioi.L. — No.
Mv. ('OUDKIJT. — If the Counsel will have i»atienee with me, I will
bind all these things up in a slieaf, if I can; but as Horace tells us, if
1 want to pull ii lioi's(>'s tail out, I nnist do it iiair by hair. This is a
liair, anil if 1 can ]mll it out, tiien 1 have made some progress, but 1
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 tiiese seals are taken
in milk, they must have reached the islands and lelt it. Jt follows fiom
tiie evidence already in the case, and from the evidence that we shall
jiroduce. that when the animals go north, tlie cows are pregnant. Their
great haste is to reach the land. IJeaching the land is life; failing to
rea<di it in time is death. As I said yester<lay, the temporary ami acci-
dental obstruction for a few days by ice, if they are late in the sea^-oij,
causes an enormous mortality, for tlie reason that the imi»s an^ dropjK'd
into the sea and drowned. 1 am glad to have the opportunity to make
this statement now, for it will explain miicli as to which there ap])cars
to be (and really in fact is not) any discrepancy. They say — many of
these men — " VVe never catch seals in luij) in the Uehriiig Sea." Of
course, they do not — it must be very rare imb'cd. They iiursue them
in ]>upand slaughtei- them as they go up towards the rribylotl Islands.
Those that they catch there are in ]n}\).
General Foster. — In the North Pacific?
Mr. OouDERT.— In the North racitic. After they liave landed and
established themselves at home iiiid liave dropped tlieir pny, (iwid they
liave but one function and one desjie, which is to nurse the pup), they
go olf, as J have stated, and they are c:\uglit in milk. All those females
that are caught there — the breeding feiiiiiles — mcinniilk; those that
are caught before they reach the islands nre in pup. You will liiid it
very important to bear this in mind, and 1 am gl;ul the learned Presi-
dent made the suggestion whi(!li called for tliis explanation.
]\Ir. Justice Harlan. — AVhen you si»eak of those caught on their
way to the land, y<m aiv rel'erring, are you not, to those caught south
of the Aleutian Islands !
Mr. CouDERT. — Yes, in the North Pacific.
]\Ir. Phelps. — Perhaps you would ask the learned I'resident to look
at this chart.
Wl
360 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
The riiESiBENT. — Wliicli is tliat?
Mr. CouDEKT. — Tt is cliiiit No. 0 wliicli Mr. Phelps has ])ointed out
to me, in the Aiiierican case.
Sir OiTAKLES KUGSELL. — At what page is it referred to in the
Counter-Case?
The President. — It is sliyhtly more satisfactory than the other
niai)s, because it shows that some of the seals cannot be mistaken as
beiiigon the migration route — that was thcpoint of my (|uestioii. Those
on the south between St. Paul and the Aleutian chain being on tiie
right, they might be taken for migrating seals — either migrating
towards the islii::'ls or from the islands.
Sir Kiv^iiAiM) Webster. — Which chart is it?
Mr. CouDERT.— No. 6 of the ( 'ounler Case. What T want to call the
attention of the learned Fi-esideiit to, is the dates. Now would you,
Mr. President, look uj) the extreme North-west there?
The President. — Yes, thai is more significant 1 think.
Mr. Co[^DERT. — The dates are August 11th August 21 st J uly 29th and
August 3d and so on.
I would also ask the Tribunal, at its convenience, to study another
map that Mr. Pheljts requests me to submit as being an important one.
It is the Ti-ack Chart of the United States Naval Olticers in Behring
Sea; and it will show how thoronghly the affair has been gone into,
an(' how com])lete the investigation has been.
Mr. Justice Harlan.- -What is the number of the maj)?
Mr. CouDERT. — The Connter-Case, Chart No. i.
Senator Mokgan. — How many vessels, do you recollect, were en-
gaged in that work there?
Mr. CouDERT.— Seven.
Senator Morgan. — Under the command of a Naval Oflicer?
Mr. CoUDERT. — Yes; under Commander Evans, who commanded the
force.
Lord HANNi^N. — Can you refer me to the evidence relating to this
map. Chart No. 0 of the Counter-Case? Is there any evidence relating
to it, do you know?
Mr. CouDERT. — To show its authenticity?
Lord Hannen. — No; not to show its authenticity, but to see what it
is about?
Mr. CouDERT. — 1 do not know that anything can be said about it
beyond what it shows for itself.
Lord Hannen. — Then 1 must say that I cannot count these things,
which I suppose re]»reseiit seals.
Mr. CouDERT. — No; this is intended to show the track pursued.
Lord Hannen. — T am speaking of the first map.
Mr. CouDERT. — 1 was speaking of tlie other.
Mr. PnELTS. — Tlierc is evidence of that. J<^very fact is perfectly
proved.
Lord Hannen. — (i)nite so. J only want to l)e referred to it, so that I
may look at it.
Mr. CouDERT. — Tiuit evidence 1 will call attentioii to later on, if I
may; but 1 uiulerstood that Loi'd Hannen's (juestion was directed
simply to tlie Track IMap. 1 uiuleistand it now.
Sir Cfiarles Ri^s>' -aa.. — No. (! is Entitled " Seals observed "' simply.
The IMnosiDENT. — How manj' seals were observed, and at what
season ?
Mr. CoiiDERT. — 1 shall give the Tribunal some testimony on that; as
I say, I have to take it stej) by step.
1
that; as
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 361
Tl»e President.— Well, we liave pciliaps distuiluHl a little the order
of your argiinient.
Mr. CouDHUT. — I do not mind that at all, Sir. As I said yesterday,
V'hen the Court shows an interest in the argument, I am satisfied; but
there are some nuittersof detail connected with the maps which require
some aid and aulh(/iity from tiie books.
L(U'd Hannen. — That is what I meant.
IMr. CouDERT. — I ])ass now from that subject. I was bejjffjing the
Court to bear in mind tlie facts I have given as to the distances that
the cows go aiul all other kindred subjects; but 1 ])ro])()se now to read,
with the jHMiiiission of the Tribunal, from ])age 147 of our Case.
1 uiay say lirst, in regard to the conti'ol and domestication of the seal,
that everything that touches the nature of the seal is importaut here;
and I would ask tlu- permissioi f)f the Court to state, for the informa-
tion of the Court and also tha.' i.iy learned friends may know, as they
have asked what evidence we had <»n this subject. Theevideiuie on the
subject of these Charts will be found in the (Jounter-( 'ase of the [Jnited
States and its Appendix, page 207 1 think it begins; and you will
also tind it at 21!), 2;}7, and ioi and following pages. I may produce
other evidence on that as well.
Now, perhajjs it might beconvenientto the Court, though it is some-
what out of the reguiiir order of my argument, to call attention, in
connection with this, to the testimony of Charles H, Townseiul, a natu-
ralist on board of one of these sliijts. Ua was with Captain IJooper,
and it is in the Counter-Case of the Cnited States, page 35(4. You will
lind a ])hotograi)h attached to it.
Senator JMokgan. — That is one of the ships that Ccunmander Evans
had in his fleet?
Mr. Coi'DEHT. — No; it was the "Corwin", Captain Ilooper; and on
page 394, you will note that Mr. Townsend says.
Aunexed to the rejiort of Captain H(i(>i)t'r is a table jjiviiifj tlie rt'siilts of the evani-
inatiou of forty-one sciila whieii were Jvilieil in H''hrinji .Sea in \X'.>J. It appears that
ol' tills nuniher twenty-two were nnrsinj; seals. Ilie ])liotofj;rapli« hereto annexed
show exactly the way all of these nursing female soals looked when cut open on the
deck of the ^''ovivin.
The apj)et •')hotograph, the one annexed to ])iige 3(t4 to which ! call
the Lttent^on of the court, shows how they looked when they were
kill'd; and you can see the milk that has been runuingand is accumu-
lated on the de(;k. The photographs, he says, especially the lirst one,
exhibit the milk streaming from tlie glands on tiie deck. I mention
that i.icidentally; 1 had intended to speak of ( aplain Hooper's expedi-
tion and his experience; and I shall refer to it more in detail hereatter;
but, with the jjermission of the ('ourt, 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
liow near a <lomestic animal the seal was. even conceding, which I do
not concede, that it is imitroper to call it a domestic animal. Whether
it is or not a domestic animal and entitled to that ai>])ellation must
dejiend, of course, upon its nature and its habits, and, as there seems
to be an issue between us as to the real luituie of the seal, and it is
one of the lew points 1 think upon which tlieic is. i)erhai)s, a real issue,
it will be well to call the attention of the lettrned Tiibnnal to the posi-
tion taken ]>y the Cnited States and to the evidence in support of it.
I shall, therefore, read from page 147 of the Cnited States Case.
The ])eeiiliar nature and hxed 'isihits of the seal make it an animal nioHt easy of
control atid management. A he. 1 of seal« is as eaT)ai)l(! of being driven, separated,
and counted as a herd of cattle on the plains.
3()2 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
I think lliat is an uiiderstiitemeiit from wliat I have read about the
cattl'> on the phiiiis. It is easier to control tlie seals; but J do not stop
to dwell ou this.
In fact, they innch resemhle these latter in the titiiidity of tho fenialoo and the
ferofity of the nialeH. Ou^' example of the ♦■ase with whicli tliey can he controlh'd
IS mentioned l)y Mr. Falconer, whosiicak.s of a lierd of tlirec tlionsand haclielor seals
hoinjr h^ft in (diar<;e of a hoy al'tcir they liad heen driven a short distance from the
linnling gronnd.s.
Then:
Mr. Henry N. Clark who was for six years,
that is, front 1SS4 to 1889,
in the employ of tlio Alaska Commercial Company and in cliarjije of the sealing? Rant;
on St. Georj^e Island, and wlio is tlierefore ospocially conijieteiit to spealc of the pos-
sihilities of drivinjj and liaudliiiji the seals, says. J was reared on a I'arni and liave
lieen familiar from hoy-hood witli thehreeding of domestie. animals, and ])articiilariy
with the rearing and management of young animals, Insnce the com])arisoii of the
young seals witli the young of our common dom(;stic sjiccies is most natural. From
niy exi)erience witli Ijoth 1 am able to declare positively tliat it is easier to manage
and handle young seals tlian 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 he rounded up as the ]irairie cattle are if there was any need for <loing
so. All the herd so driven are lifted u|) one by one and examined as to sex, and
Avhile in this position each could ho braiidiul or marked if necessary. If tlu^ seal
rookeries were my personal projierty I should regard the task of branding all tlie
young as no more dilhiult or oneious than the branding of all my calves if I were
engaged in breeding cattle upon the prairies.
The testinionv as to this is found in volume 5 as is noted here.
stateuieiif as to tlie iiossibility of branding the young seals is su])-
e<|\iiill\ evperienetMl in seal life in tin; ishinds. J)r. Melntyre so
The fore^oiuij
port(Ml by otiiei
long exiierieiieed in IIk; liaiidling of seals, says that they are as controllable am
amenab'e to good niaiiageuient uiion the islands as slioep and cattle, and several
other witnesses make like allirmat ions. Chief Anton Melovedotf, already mentioned.
He is one of those who has the most exjierience and knowledge on
the subject,
states that it is usually sup])osed that seals are like wild animals. That is not so.
Tliey are used to the natives and will not run from them. 'J'he little ]iups will come
to them, and even in the I'all, when they are older, we can take them up in our
tninds and see whether they are males ov females. We can drive the seals about in
little or large bands just as we want them to go, and they are easy to nuinagi ,
Several other Pribilol' islanders and white nu^n long resident tliere mak<^ similar
statements.
Tliis peenliar sn8CC])tibility to control has also heen ami is recognised by sncli a
well-known scientist as Dr. E. von Middendorlt', of Russia, wlio, in a letter dated
May ti/18. l<Sli2, says: "This animal is of commercial iinjiortance and was created for
a ilomestic animal,
my learned frit'uds on the other side, I am glad to see, think there is
soniethino- humorous about this, so I will reail it again.
" This animal is of commercial imi)ortance and Avas created for a domestic animiil.
as I jiointed out many years ago,"
as we sluill show by other evidence.
Tiie I'lJKSiDENT. — .\re you aware that the biiinding of the seals has
ever been ])racti(ally us<m1.
Mr. (!()IT1)ERT. — 1 prcsiiine not, why should it be? If we are deidiii,
with a lawless baiid of men on the higli si'as, wjio say that the freedom
of the seas does not ])ermit us to use our projierty, how would branding
help us?
Tlie ruESiDEMT. — Would it be practicable, that is what I want tu
know.
,bout tlic
i not stoj)
00 aiul till'
coiitrolli'il
tlielor seals
le from tLe
sal ing pans;
of the i><is-
11 and liavo
partieiilarly
isuii of the
!ial. From
■ to miuiajte
former are
er for food,
1(1 for (loiiifj;
to «ex, aii(l
If tlie seal
liiij; all the
e.s if I were
ere.
seals is Hit])-
Mcliityre ho
•ollahle and
and several
mentioned,
s'ledge on
t is not so.
ts will come
uj) in "MI'
Is ahont ill
to niatia.i;!'.
ik(^ similar
il by sneh a
letter dated
ereatcd fur
! se.tls llils
re (It'iiliiiu
lO IVtH'doiii
irandiii;^
1 want to
ik there is i
stic animal
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 363
]Mr. CoUDKRT. — 1 think so. Why not. We take thcni in our arin.s,
examine tliem and liandle tlieni, therefore why not brand them, but
what jjood would it do'? On tlie i)rairie, when a man (hies the thing
that these people are doing, he is hung on a tree witliout a Judge or a
jury, because necessity compels men to do it. Tliey cannot run about
for a Justice of the jieace, three or four huiulred miles oil', and say,
"Tins man has stolen my cattle, notwithstanding the brand"; self-
protection tirst steps in. but how would it heli)us? They cut the ears,
in some instances, of the pui)s and the next year they lonnd the ])Ui)s
with the same ears. That is a ])roi)osition that my learned friends will
not dispute. "This power of domestication has made it jiossible to
discriminate carefully".
Sir ( 'iiaki.es Kisskll. — Will you read the last sentence, because it
was that which rather amused me. It begins " It is in fact".
JVlr. CouDKRT. — Yes, 1 will.
It is in fact the most nsefnl of all domestic animals, since it requires no care, and
no ex])enso, and consecinentlv vieldsthe largest net jirolit.
Probably this was written before the naturalist quoted knew pelagic
sealers had i)ut ns to a great deal of expense. To that extent he is
inaccurate.
This power of domestication,
our case goes on to say,
lias made il possihleto diseiimiiiate most earcrnlly between the classes of sealskilled,
and to enforce rules ami rejjulatious for the f^rneial niaiia<;ei icnt ot' the iierd. Rear
Admiral !Sir M. Cuiiiie Seymour, in a desjinteh to the Jiritish Admiralty says: — "'J'ho
seals killed hy the Alasl<a Commercial Comiiany are all clulihod on land, where tlie
dilfereiice of sex can easily he seen."
Now so long as tlicy are on the laml, and this goes on, what ditfeieiice
is there, — what dillcreiice can be alleged, between these and domestic
animals? If you lake the old (Expression — the old distinction between
fcr(v natur(v and (hnititw nutunv, that is a nature that is controlled and
reduced to subjection by man, are not these animals doiiiitw nofura:?
They will come to man. they will be fondled and handled by man, they
Avill be driven by man, they will be enclosed by man in sucli district as
lie maj' choose.
Senator Morgan. — In iK)int of domestication in what do they dilfer
from swine, which are not usel'nl for any ])urposes of domestic emjiloy-
nient, and are used only for food, and yet are domestic animals?
Mr. ('oTTi)ERT. — They are i)ractically like swinein that way, and they
are also like calves. The Hes! is eaten and resend)les veal; the pelt is
extremely valuable. We do not make hogs work. We raise them
because of the food they furnish and because theii skin is \aluable in
commerce. J confess my utter inability to see, during that period at
least, while th*- «'ase is not complicated, if it be <'oiii]»li(;ired by tlieii'
resorting to sea to get food instead «»f roaming on a jnairie to get giass,
that there is any dilVerence whatevei-. and why, unless we are fettered
by ancient ])reiudices and old igivoraiice we should notsay that the s<'al
is a domesticated animal, an animal of a conquered nature, domitd
nainric.
Xobody can doubt, if we could devi>4e some useful jiurpose of woik
that they could r(Mdilybe compelled to do if, but they are useless as far
OS
•tl
l.mp
it may be
the develojnnent of time, but when it comes to hypothesis an<l (ionject-
ure, then I lea\ e the Jiritish Commissioners to open the door, Tlieie-
fore, when I stated yesterday that these were practically domestic
364
ORAL ARGUMENT OF FREDERICK R. COl'DERT, ESQ.
li
aiiiiiials, my statement, at least, is"! snpixtrted by reason, and by the
testimony of wiser nicii tiuin mysi.f,
A (juestion now comes iip, a most important one in one sense, and an
utterly irrelevant one in the other. That is the (luestion of manage-
ment on the islands. That (luestion, so far as tiie jndyment of this
Tribunal is concerned, in its general aspect is entirely irrelevant. The
management of this herd is our atlair. It is the exalusire affair of the
United States; and neither Gi'eat Uritain nor France, nor any of the
countries here represented, would willingly tolerate, much less encour-
age, any interference with its home affairs, such as the management of
this herd upon tiie I'ribilof Islands. While that herd is there we sub-
mit it is just as n)uch and exclusively within our control, and our
right of contnd as if they wtu-e so many calves or s\\ ine.
Senator Moiujan. — Do you find any power in this Treaty for this
Arbitration, to deal with the question?
Mr. Coudeut. — >.'o. 1 was coming to that. Not only no power, but
an exclusion which is stronger than a mere negative argument. The
Treaty says that you shall not deal with tiiis. (ireat r>ritain would be
the last nation in the world to permit a foreign iiujcrcnce, 1 will call it
because it is an untranslatable word — for lack of a better 1 would say
"interference" — hnt nuy inimixtion 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 u])on land.
You dispute our title ui)()n the sea. We yield for a nionient, and sub-
mit to the ])eaceful metliods of arbitration rather than resort to the
brutal methods of war; but nobody can <lispute our right to manage
these animals as we ])lease upon tlie land. The land is ours, and every-
thingthere is ours. From the lowest dejtth below ustjnc nd calnm it is
ours; and Great Britain would not permit, if any jurisdicti(m 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 Govenunent gave them careful notice tiiat they must
not «^\cepd defined limits. My position now is before this Tiibunal with
all respect, and unfeigned respect, that so far as the management is
concerned of our Islands, — as mnnaf/cmrut — it is entirely outside this
case and (mtside the jurisdiction of tliis Court. In one aspect of the
discussion, to which I shall i)iesently allude, it may be important to con-
sider it, but so far as Begulations are (concerned, I will ask you to hold
that it is outside entirely, that y<m 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
Commissionei\s): we nmy therefore be trusted to take care of our own
pro])erty in the best possible nuinner. All I would ask you to look at is,
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 otliersf)r annihilation.
When you consider the cause of the destiiiction, you may say, if yon
choose to look into it, that bad management, if siny lias been inovcd.
that bad system, if any is alleged, may have contiiituted to the alleged
diminution by pelagic sealing; l)ut so far as regulations are concerned.
that is a matter absolutely within our own exclusive jurisdiction ami
right.
Lord Hannkn. — Will you allow me to make an observation.
Mr. CouDERT. — I hope your Lordship will.
I
ORAL ARGUMENT OP FRKDEUICK R. COUDERT, ESQ,
365
by the
, and an
nanage-
i of tills
it. The
r of tlie
y of the
encour-
inient of
we siib-
and ouv
for tliis
wer, bnt
It. Tlie
rouhl be
ill call it
ould say
h word,
Tills is
ton land,
iiid sub-
t to the
manage
id every-
liim it is
I of hers
)e raised,
sh Com-
ley must
mal with
oinent is
ide this
t of the
it to con -
to liold
ur prop-
in to be
Govern -
British
our own
)ok at is,
h extcr
' are not
\. if you
jn'ovcd.
' allcji'cd
ncerncd.
tion and
Lord llANNE^'. — Pray do not snppose it to show any leaning; of my
mind at all. I only want you to touch upon this question : J)o you
think that we conhl not nuiUe conditional Kegulations?
Mr. CouDEUT. — I do.
Lord ilANNEM. — Conditional upon something done or not done upon
the other side'?
Mr. CouDEBT. — I do.
Lord JiAMiNEN. — \'ery well, that is all I wanted to know.
Mr. CouJiEUT. — 1 do. I think that is entirely outside. 1 think that
this Tribunal should assume that, dealing with our own property, we
will deal with it undei' 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 hy Lord Salisbury
to the Commissioners — it is on page vii of tiie Uritisli Commissioners'
Jieport. It is fair to say the IJritish C(»mmissi<)ners very properly
looked into our methods of doing business, and f iind no fault with
them; I think they will concede that every possible facility and courtesy
was shown them, and everything was (h>ne 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 i>resent the case that the Tribunal
may be furnished with the fullest knowledge of the facts.
You will observosavM Lord Sfilislniry <o tlu^ ('oiniiii.ssiuiicrH, that it in iiiteiidiMl that
the iu'piirt of the .loiiit (JoimiiissioueiH sliail euiltraoe recoiuiiii'iiilatioiiH tiA to ail
inoasiires that Khoiild bti adojjtcd for tlio ])re.s(>rvatioii of si^al lil'e. I'"or tliis jmrjio.se,
it will he necessary to consider what h'ej4;"'l'it'""-'< "i".V seem ailvisahle, wliether
within the Jurisdictional limits of tln! United States and Canada, or outside those
limits. Tli(! h'ejiulations which the Commissioners may recommend for udo])tion
within the resjieclive Jurisdictions of the two countries will, of I'ourse, he matter
for the considtiration of the respective Gov.'ruments, while the K'eifulations affecting
waters outside the territorial limits will have to ho consideri'd under clause 6 of the
Arhitration Aj^reement in the event of a decision bt'iiii;' j;iveii l>y the Arbitrators
against the claim of ex(dusive jurisdiction jtut forward on btdialf of the United
States.
There you see the intention very plainly indicated. Diidoniacy
might still have goneon between the(iovernm('nts. TheCJovernmentof
Her Majesty desired to know precisely what all the circumstances con-
nected with seal life wer«4 and what the elements of this destruction
were, and therefore it says: "Study the subject." So far as the jurin-
diction is concerned on the. hiijh seas, that is a matter for the Arbitration,
bitt where it is inside the Jurisdictional limits that will, of course, be
matter of consideration for the respective Governments, and it pro-
ceeds :
The h'eport is to bo presented in the first instance to the two (ioveriiments for their
consid(!ration, and is subse(|Uently to lie laiil liy those* (iovernnienis lielore the Arbi-
trators to assist thcin in d(^termitiin<j the more reslricti'd i] nest ion as to what, if any,
Rejrulatioiis are essential Ibr tin |iroleili ni of the tur-bearin>( Heals outride the ter-
ritorial jurisdiction of the two couulrie».
In other words, outside the ttM'ritoriai Jniisdiction ot the ('(Mintries
we stand on the same footing as Great Uritain: wc have itiesame rights
!is Gi'eat liritain to mal<<' IkCgnlat ions to protec! this animal ontsid<>,
and if the United States are incompetent at home to taUr <aro of theii'
own so nnu'h tlie worse for the United Stiites. Tlicy lu'ver meant that
their light to make hius for their own country should be given up to
anyone.
Xow, with this preface, L go on to e.xamine the (piestion of the man-
agement on the Isl inds. It may be well, in iidvance. to say what we
consider to be the prime conditions oi dilVeience betweeu the systems
5
366 ORAL ARGUMENT OF FREDERICK R, COUDERT, ESQ.
on the IsLinds und pelajjjic wealing', that is sealing on the high seas. It
is that, in the one, discriinination is possible, and, in tlie other, discrim-
ination, by the very nature of tliinjjs, is impossible. The British
Commissioners have stated, and they have truly stated, on this subject
of discrimination that it was absolutely impossible, and liave illustrated
it in this way. — Tiia£ it is as unreasonable to ask a pelagic sealer to
discriminate as to the sex of the seal that he kills as for a tisherman to
discriminate as to the sex of the lish 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 morlein examination, of necessity, and
cannot be anything else. There is tlie great distinction. Whereas on
the Islands an intelligent system, pursuing the laws of nature, will
enable men to discriminate, and will preserve the llix-k. That is the
reason from the beginning, — away back into the time of the Hussiau
occupation, when it was dis('overed, for it was only by experience that
it was discovered, that a deadly wound wns being inHicted upon the
property (that is, the licrd) by ])r(»mis('Uous killing. The Russians came
to the conclusion that they must disciiminate as to sex and kill only the
young males.
That system lias been carried on by the United States with improved
methods, as w^ liall sliow. It is a rcasoiuible system; it is declared
by our Adversaries to be an admirable system; to be i)erfect in its
theory, and we claim it to b<' 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 tbimder upon that rock: — "Discrimina-
titni is impossible excei)t on the Islands." I need haidly argnie that if
there is no discriinination, theie must be d*'struction. This is an
exj>anding business. It has been a niost])r(»litable, one; the number of
ships has increased enormously, and if it is tiirown o])en or kept open
to ])e1;igie sealing, there being no discrimination, females being largely
])redoniinant in the catches, n<i argument is necessary to show, for it is a
conclusion from ordinary experience and common sense, that extinction
must ensue.
I will read a sluut statemeni from our Case on this page 152:
The ("lass of seals allowy>»l to be kill(Ml nvi\ tlio iion-brcediuj;' injiles from one to five
years of ajte which haul 5»)»t upon tlie liauliuy- grounds rcnioto IVoui the lueediiifi;
grouuils. Tlu' hanilling of this class of seals because of their separation from the
breeders causes the least possible disturhaiice to the seals ou the breeding grounds.
Your Honours may remendier that yesterday I called attention to the
distinction on the land, — the dilterent homes that these animals had
ado]hte«l. ttie (M bulK going tirst ou certitin parts of the rookeries, the
COW5. following, anul trhe young ones taking a diU'erent locality, — a dif-
ferent district (»iii the Islands: so thai when you take the young males
you do not ilistnri) the ItreiMiiiii: grounds at all; and it is very impor-
tant tliey shouid nut Ite distarlted. (ireat precautions are taken; as,
for instance, iwt a dog »s allowed on the Islands, lest his barking should
disturt) the -*als: and I believe they even go so far as to ))revent
smoking; — a» any late, if the seal's sense of smell is as keen as the
British (/oumiuiHHioners make out, they ought to stop smoking.
Lord ITa^jnen. — Is it not that they forbid lighting tires because of
the smoke? They '..■ !i(»t forbid smoking, do they?
Mr. (JouDERT. — W ell, my impression is that smoking near the breed-
ing grouiuls is interdicted:
The handling of rlils class of .^.'ais hecause of iheir separation from the breeders
causes the least possible disturbupuoe to the seals ou the breeding grounds.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 3G7
and
iiiise of
breed-
I
And tlie evidence will show tliat the utmost care and the greatest
preciintious are taken to prevent that disturbance.
Then on the next pa ye:
The niiinlier of HealH allowed to bo killed annually by the lessees was, from 1871 to
1889 inclii.sive, 100,000.
That is under the tirst lease.
Hut this number is variable, and entirely within the control of tliH 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 rijiht, with an intelligent
supervision, to determine if the 100,000 shall be reduced or not.
Senator j\[ok«an. — 10(>,000 is the maximum limit, 1 understand.
3Ir. ('ouDEiiT. — VTes, no more than 100,000, but tlie Secretary of the
Treasury may reduce it as much as he thinks lit.
In 1880 Cliarles .1. (iofl'. then the (jlovernuu'ut a^jent on the islands, reported to the
Department f liat lie considered it necessary to recliice the ipiota of skins to Ix* taken
in 1890. The 'Government at once reduced tlie number to 60,000 and ordered the
killiuj;' of seals to cea.se on .hily 20tli.
jNfy friend, Mr. Williams, reminds me as a matter of fact that they
only killed 20,000. And now we must be taught by our eiu'mies, and
I will read from the British ('ommissioners' Heport, page 114, section
600, with the permission of the court.
Theoretically, and a])art from this iiuestiou of number and other matters inciden-
tal to tlie actual workiuff of the methods employed, t\wtn' were exceedingly projier
and well conceived to insure a larj;o continual auuual outjiut of skins from the
brcedinsj; islands, always under the su]>|)ositiou that the lessees of these islands
could have no competitors in the. Nortli I'acdiic.
I will ask, at this point, to have the Arbitrators stop and look at the
statement. An admirably devised systein, 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 fenuvles
were born, that these were subject to e(|ual losses by death or accident, and that in
conseijuenco of the ])oly}j;auuuis habits of tlie fur-seals, a large number of males of
any liixcn merchantable ago 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 1 will read — (iOl.
The existence of the breeding rookeries as distinct from the hauling-grounds of
the young males, or holluschickie, was sup])osed to admit, and did in former years
to a great extent admit, of these young males being killed witliout disturbing the
bret ling animals. The young seals thus "hauling" apart Irom the actual breeding
groiiuds were surrounded by natives aiul dri\ en iM to houw couviMiient place, where
males of suitable size were clulibod to death, and tinm which the rejected aninuils
were allowed to return to the sea.
The method is on i blow on the hejul; the animals are very easily
despatduMl. The bones of the skull are very thin aiul it is a. ptiinle.ss
prom])t and ellicient method of putting them to deatli. The sports-
maidike instincts — th 3 atavistic instiiuits of the Biitish Commissioiu'rs
rebel agiiiust this. Oh! they say, it is very brulal and it is not lialf so
si)()rtsmatilike as gong round witli a ritle and a breech loiuler ami a
gatt" and giving tlie aniiiuxl a chance to escajjc. Well it is precisely
what should not liii[)pen. You do not want the animal to escape,
M
368 ORAL ARGUMENT OF FREDEUICK U. COUDERT, KSQ.
especially if it is to get away with a woiiiid in its body, to peii.sli, jukI
to be of no use to any human being. Our nietliod, is not sportsnianHko
and that is precisely its beauty — its convenience. These animals iinist
be sacritlced for the good of mankind. Tiien the only (|nestion is, liow
can you do that in tlie most humane way; and we tliiiik that a blow
on the head, which kills tliem in tiu? twinliling of an eye, is infinitely
more humane tlian giving them a cluuuie while you ar«> pursuing them
with a shot-gun and a s])ike.
There is no evidence, I think I can say this boldly and with i)erfect
confldence, wortiiy of consideration, sliovviiig that, from 1S70 down to
the year ISSS or thereabouts, any decrease in the h«M'd had taken ])lace
through such killing; on the contrary, the evidence sliows that tlie
herd had actually increased during tiiose ten years, and it was only
when destruction on the sea began, with its inevilaljle a(!coini)animent
of permanent destruction, that they found on tlie islands that they were
killing too many males; and the <!andid confession of the Jiritish Com-
missioners themselves explains it. The system was not adapted to
pelagic; sealing — to this growing industry — for whit h they wished to
provide, not only to-day, but for its natural expansion, is they exjtressed
it. So that you are called upon to imdce regulations not only to jyerinit
this slaughter that includes 80, itO or '.>5 per cent of females, but to cast
an eye into the future and invoke a pro])hetic faculty. You must say:
"This is going to increase, and we nnist provide for the increase of
pelagic sealing besides ])rotecting it in its ])resent condition."
Now, in connexion with that, and in support of it, 1 want to read
from the United States Case, page 1<»1:
Under this careful niaiiii<{einent of tlic ITnited .States Govoriiineiit, the seal herd
on the Pribilof Islands ineieased in iiiiiiil)ers, at least u]) to tlie yciir ISSl. This
increast? was readily recoftnized by those l()cate<l on the islands. ('a])(aiu Bryant
says that in 1877 the breediuK-seals had increased to sneh an extent thiit tliey sj)read
oiiD on the saml beaches, while in 1870 they had been confined to the shores covered
with broken rocks. Mr. Falconer mentions the fact that in 1871 i)assa<;es or lanes
were left by the bulls through the breedinj;; grounds, Avbicli he observed to be entirely
closed up by breed injr seals in 187() and in this statement he is borne out by I>r.
Mclntyre. It must be remembered in this connection that two hundred and forty
thousand male seals had been destroyed in 1868 —
that, as I have already explained to the court, was during the year
when there was an interregnum, Kussia retiring and the United States
not appearing, then there was a slaughter of li40,000 —
and that this increase took place in spite of that slaughter and altliough 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 practi<;e until i)elagic sealing appeared before
the world. Until that method of desti-uction became nuinifested and
its results became evident, there was no ditliculty 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 difi'erent
subjects at page 200. It is practically an Appendix to our Argument.
There is the testimony of Mr. JMelniyre. I will not trouble the court
to look at it; I will refer my friends to it. Mr. Mclntyre says:
That while located on the Pribilof Islands I was the jjreater part of that period
npon the island of St. Paul; that dnring the twenty one years ujion the islands I
examined at freiinent intervals of time the breeding rookericH on said island of St.
Paul, aTid now recollect the condition of s;ii<l rookeries an<l the a|)proxinr.itc iirea
■«»hich each of them covered at dill'erent times during my experience on said ishuxls.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 369
by l>r.
le year
States
100,000
i\k it is
jgiiage)
system,
[it was
before
led and
pud, as
Irt and
lilVerent
Imuent.
le court
t pprioil
slaiuls I
of St.
itc iirciv
isluinls.
I
lul
He tlien goes on to state that be lias drawn a chart from memory,
which tlie court may look at. 1 am fully conscious that a chart drawn
from memory after many years is not as reliable as it might be, but it
simjdy expresses, in that form, the best recollection of a ndiable witness
on the su' ject.
The next t>assage is also from Mr. ]\[clntyre's evidence page 45. I
am reading from the same page of the Collated Testimony.
Tliiit from tlio year 1870 tliun! was an expunsiou of th<' arcuK of tho breeding
giomuls, and tiiat in the year 18813 tiny were aa large a» at any time during my
acquaintance witli tliem.
It was only subsequent to this ])eriod that the diflicnlty was found
with regard to getting the males.
Now on page 207 of the Collated Testimony, Daniel Webster (and I,
may perhaps reiftind the Court again that Daniel Webster is conceded
to be a reliable, honest, and trustworthy witness), says:
My observation lias been that there was an exi)anHion of the rookeries from 1870
up to at least, 187!t, whieh faet I attribute to the carcfnl management of the islands
by the United States (iovernmeiit.
Twenty-four years of my life has been devoteil to the sealing iiidnstry in all of its
details as it is pursued n]ion tlu; I'ribilof Islands, and it is but natural that I should
become deejdy interested in the suliject of seal lite. My t^xiierieuce has been prac-
tical ratlu-r than tlieori'tical. I have seen tho herds grow and multi])l.\ under care-
ful management until tlwir inimb<'rs were millions, as was the case in 1880.
Now in connection with this, whicii is a very imjjortant subject not
only in a practical, but in what ouw friends the Hritish ('onimissioners
call a transcciideiital point of view, this assault uj)oii tlu^ management
of the United States is one that we may well meet with abundant tes-
timony if we have it, and we iiave.
In the Collated Testimony (the same hook, page UoT) there is the
evidence of Mr. Charles l>ryant, one of the most experien<;ed of them
all; he is (jonstantly referred to, and constantly commented on, by the
other side, lie says:
I have examined tlm breeding areas of 1870, indicated by H. If. Mclntyre ou
charts A. li. C. 1). K. F. and G. of 8t. Paul Island, ami they are, to the best of my
knowledge and belief correct. I have also examined the areas of increase shown
by him ou the same i harts as api)licable to the breeding rookeries of 1881!, and, they
are proportionately correct in 1877, the last year of my stay njxni the islands, the
increase up to that time having been about half of that shown i)y him. The al)ove
siatemeut is true also to the best of my knowledge and Itelief, of the breeding areas
of 1870, and the increase of 18813, indicateil by Thomas F. Morgan ui»on charts II. 1.
.1. and K. of St. George.
We then have this on page L'GO :
Fr(m» 1870 to about 1881 tho seal rookeries wen* always filled out to their limits
ami sometiuuis beyond them.
This witness is a ])riest of the (ireek Church, ( ieneral I'ostc'r reminds
me. and I may say in connection with the testimony (»f this reverend
gentleman that it is a matter ab(uit 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 203 we have the testimony of Mr. John M. IMorton. Ho
says:
I have already stated that my personal observation and invest igiition of tli(( con-
dition at the islands from 1870 to 1878 inclusive, showed that during those years a
steady ex]>aiisiiiu of the breeding rookeries took ])lace. 1 am also iufornied and
belie\e that such expansicui continued u]) to the year 1882 oi- ls8l!. During this
j)eriodof general iiurease it is notable that tho destrnctiou of animals from pelagio
B S, PT XII 24
f
370 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
seaiin.!; wan (:()mparati\(;l.\ iiiiimitorfiuit. lliifc a fuw vi-sscOs ii)i I" tliis time liml iiiiido
l>M'(l;it()ry exc-iUHioim in Hehring 8ea, ami tho uiiiiilid' ol' Mt'iils obtiiinod by thum is
kuown tu havu beuu Hinall.
[The Tribuiiiil tlicii iuljounied lor ii sliort tiiiic.]
Sir. CoUDKRT. — As 1 was saying to llu'Coiiit at tlio lioiirof adjourn-
ineiit, the question of iiiaiia<;eiii('iit on tin? Ishinds in one aHjject of tlio
case is impoitant, and the ((u<'sti(tn of increase or decrease is one that
(h'serves consideration; our projtosition is tiiat the period lioni about
1880 to 1884 or 18S.> was one of stagnation. From ls70 to 1880 it was
one of incn^ase. Of course it is not absohitely and inatheniatically
])0S8ible to say when increase ceased and staj;iiation coniinenced and
decrease took its phu-e, but speaUinjjr .ycnerally and witii such informa-
tion as we can j>et from j)ersons best abU', to express an opinion, that is
the estimate tliat we submit to the Court. — Increase to 1880: stagna-
tion from 1880 to about l88h and subseciuently to that, the decrease
Avhieh it is conceded on all sides exists and now threatens extermina-
tion. After this latter date of 1884 or ]88.">, tiiere was a ]»ercei)tible
decrease in the iierd as a whole, alth(mj;h no ditlictdty was at that time
experienced in getting;- the full (juota of 100,000 young males, but when
1887 was reached or 1888 then the dilliculty was first experienced. It
is almost unnecessary to say that those on the islands would tirst notice
the decrease in tliat particular class of animals in which they were
most si)ecially interested, o\er which they had control, fnmi which they
took their supplies and with whi(;li. they hatl the most to do. This is
tlie statement in the case of the United States at [tage Km:
from tlio year 1880 to tlie year 1884-l«Hr> tlio condition of tlie lookcrie.-i .slioweil
ucitlier incrcMse iior ducrenso in tlicnnnihcroi" st-jilK on tlie isljindH. In I8St however,
tliere was a jjeiceptihle decnasc uotici'd in tlie seal Iierd at the ishuids and in 1885
the decrease was marked in the migrating;' licrd as it ])a.s8ed up idonj;' the Aineriean
coast, both l)y the Indian Imnters aionj^ tlio const and by wtiite seal hunters at sea.
Since tliat time the decrease has become more evident I'roni yeiir to year, both at the
rookeries and in the wateis of the Pacilic iinil lit'hiin;;' S(?a. 'rii(< Hehrinff Sea Coiu-
missioners of both Great Uritiiin an<l the United States in their Joint rci)ort, affirm
th.at a decrease has taken i)lace in the ntunlier of the seal iierd so that the sini)do
fact is iicci-jiteil by both parties to this controversy. But the time when the seals
commenced decreasing, the extent of .such decrease;, and its eansts -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 num.
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 thousaiKl it is trtu' originally, but gradually growing up till
12,000 or 13,000 were reached, — about 1880 or 1870 it began to average
some 12,000, — if we have shewn tlr.it uj> to that time the rookeries were
prosperous and increasing, and suddenly came a tap, a drain, ui)on our
resources in the form of pelagic setiling, aiul tliat many thousands were
killed, and under siu;h circumstances that the killing was jteeuliarly
fatal to the integrity and increase of the l!o(;k, we would naturally
think tliat we have no more to shew, the burden is ui)on the other side.
If I have a tlock of sheep, and 1 can prove tliat lor a number of years
raiders have been at work, and they have carried ofl' my ewes and
lambs in large numbers, I am not called ujion to shew that the animals
died of niurrain or sunstroke: tlnit 1 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 eunudative effects it was
large — is to shew why the tlock decreased. But we are not left only to
this obvious and natural and necessary inference. We have the proof
1
ORAL ARGIJMKNT OF FliKDEUIClv K. COUDEKT, i:S(J. 371
:it the
;l Coiu-
iiffirm
simiilu
.seals
tors lor
ac'k as
levous,
up till
verage
^'S were
lOii onr
s were
iiliaily
tuvally
T side,
yoiivs
les ainl
ninials
ersavy
oiu tlie
it was
only to
e proof
on that, Tln' tijitiros 1 liavi' alioady to soiiic extent yiven. Tlieyliavo
ajipcMicd f'lfHii my hrotlicr ('intci's aryiiiuciil. and 1 also will j;i\«' tlm
Coni't a sfiitenu'iit slicwinjii'. as lar as niiiy !»(•. what the extent ol" pelaj;i(i
sealiii^i' was tVoiu ISTtl to I'^si. IJut 1 omiht to say now. so that the
tabh; will be iinderstoo(l and lest I slnndd omit tlicm, tliat we are unabhj
to }jive an exaet and satisfactory statement. Onr t'licMids on the other
side are able to <;ive us a statement of tlie Canadian sealers and the,
liavoe done by tiiem, beeanse there is a rej-nlar table and account kept
of that, but in addition tiiere was a nundier of Anu'rican sidjjs eni^ajied
in the same business ;;(tinji' on with the same methods of destruction
and resnltinf; of course in tiie partial deterioration of tiie Hock beyond
the inunediate nnndicrs kiMed.
Senator Moikjan. — Do you mean the American 8hii)s were engaged
in the IJeiiring Sea, or outside of it?
Mr. Coi'Dl'.UT. — They were engaged outside at iirst, from 1870, — wo
have no account of it; so that when the Court looks at the statenuMit
furnished by oui' learned frii'uds as to the depredations committed by
the Canadian sealers, it must be borne in mind, that it is only an ini[)er-
fect statenu'Ut of the damage a<;lually realised.
I resort, again, to Mr. Mclntyre. Ih; was on these Islands most (d'
this time; and 1 am about to read now from the collated testimony,
page 277. That is the Appendix to the Argument.
Sir. Justice IIaim.an. — The e\ idemc there is in the same words as in
the original v(»lunie.
Mr. CouuKirr. — Yes; it is an abstract, but a literal abstract.
Mr. PiiiOLVS.— It is really an extract.
INIr. CouDJiR'r. — Ves, aliteial extract.
'I'liat duriu},; the tliicc. veins following; 1882, naiuely 1W;5, 18«t and 1«M5, I was not
11)1011 tlie islaiuls; tlmt ii]iiin my ictiirii tr) said islands in ISSfi I notipcd a slij^lit
Blirinkaf;c in tlio bircdlni; areas hut am nnalilc to iiidicalo the year of tliii period ot"
my aliseiicc in wliieli tlic decrease (d' lucu'diiii;' seals befian : tlial from tlio .\ear isStJ
to 1><S!I, iiiehisive, my olisurs atinn was contimioiis and lliat liiere was a (ijreater
d(Mreaso of the seals for eaidi HUeeeedinij; year of tliat ])eriod, in a eiimulativo ratio
projiortionate to theniiiidior of S(>als killed l>y jielagie scalers.
In IXSfi I a<;ain assumed iicrsoiial direction of the work upon tho islands, and con-
tinned in eharjic up to and inchidiiifi; 1889. And now, for the iirst time iu uiy expe-
rience, there wasdiflicnlty in securing such skius as we wanted.
That is in 18SJ).
The trouble was not particularly marked in 1886.
Mr Justice Harlan. — That was in lS8ti, I think.
The riJKStDKNT.— From 188G to ISSD.
Mr .Justice Haim.an.— Hi* says: '>And now, for the Iirst time;" that
means, for the iiist time iu 188G.
Mr CouDERT, — Yes.
The trouble was not jmi t iciilarly marked in 1880, but increased from year to year
to an alarmiufj exttMit, until in 18SH, in order to sec'ure the full (piota and at the same
time turn l)ack to the rookeries such breediiij; liulls as tliey se(inie(l to absolutely
need, we were forced to tak(! fully ;")() yier cent, of animals iiiHler si/e, which oii;;ht to
have been allowed one or two years more jiiowth. Conccrniiij; this mat ter, I reported
to the Alaska Ccunmercial (.!om])any under date of .Inly 1(1, 188'J, as Idllows; "'llie
contrast between tlieju'esent condition oCscal life, and that of the Iirst decade of the
lease is so marked that the most inexpert caiiuot fail to notice it."'
Just when the chauji'e coinnieiiced, I am unalile, from j)ers()ii;il observation, to say,
for as you will rememlier 1 was in ill lie;ilili and unable to visit tlie islands in 1883,
1884 aud 1885. I l(;ft the rookeries in 18S:.' in their fullest and best condition, and
I'oiiud them in 188() aln.'ady showini;- sli<,dit falling; otf, iwid ex|)erienced that year for
the iirst time bomo difticulty in sccuriiijf just the class ol' animals in every c.ise that
we desired. We, however, obtained tin; full catch iu that and the two foliuwin^r
Years, tinishing the work from tho li'lth to the 27th of .July, but wore oblijjcd, par-
IMAGE EVALUATION
TEST TARGET (MT-3)
/.
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1.0
I.I
11.25
!r ilia
"■' 116
M
2.2
ti£ IIIIIM
1.8
U ill 1.6
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7
7
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Photographic
Sciences
Corporation
33 WEST MAIN STREET
WEBSTER, NY. 14580
(716) 872-4503
^
>^
372 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
ticnlarly in 1K88, to ccintoiit oiirftelveH witli Hiualler skiiiH thuu we had heretofore
taken. TiiiH was in piirt duo to the nercHsity of turning back to the rookerieHniuny
half-grown hulls, owing to tlio notahle scarrity of bnu-ding males. I sliould Inive
bfen glud to have order('<l thciii killed insti'ad, bnt nmlcr your instnu'tiniis to see
that the best intcn-sts of the rooki-rii's were conserved, thought best to reject tliciii.
The result of killing from y<-iir to year a lurgt; and increasing number of small ani-
mals is very a])|iarent. We :ire simply drawing'in advance upon the stock that
should be kt^pt over for another year's growth.
Then, in 18*,M), the quota was reduced to 20,000 and the new lease took
effect in tliis year.
Sir CiiAiM-KS KusSKLL.— "1800" does not apiK'nr there at all.
Senator Morgan. — Can you state e.\a(ttly when the tirst mudtis vivendi
took eH"ect.
Mr. CoUDERT. — 1801.
Senator Morgan. — What time of 1891.
Mr. CoiiDERT. — I think it was in June — June loth 1801.
Senator Mokgan. — It covered the lishin}? seiison of 1801.
Mr. CoUDKRT. — Yes.
Senator Mokcjan. — And the second one covered the lishin;? season
of 1802 and 1803 to October next.
Mr. CouDi-iJT.— Yes.
Senator M()R(JAN. — Now duriiifr those two periods the take of the
United States was coiilincd to 7,r>0(» seals.
Mr. Coi UEUT. — Yes, a somewhat larger number was killed.
Senator Mgugan. — I remembei-.
Mr. COUDKKT. — But it did not exceetl 12,000.
Senator INI org an. — Tlie modus vivendi confined the take on the part
of tiie United States.
Mr. CouDKirr. — Yes.
Senator AIoikjan. — Can you state how many seals were taken by the
pehij;ic huntei-s in 18tH.
Mr. CoUDHKT. — \'es, we have that to some extent. 1 am cominji; to
those fijrures in a monuMit, 1 will give them as nearly as we are able to
jjive tluMU.
Senator Morgan.— For 1801 and 1802?
Mr. CoiiDEKT. — Y^es.
Senator Morgan. — I believe those figures run up to 60,000 or 70,000.
Mr. CouDEUT. — Yes, 1 waj^about to say there were (!8,(M)0 in 18!)1.
Senator Mor<jan. — How many for 1802?
Mr. CouDERT. — We have not the figures: t'ley are not com|)iled ; but
the figures, as given by the other side, of the pelagic sealers in 1801
amount to 08,000 seals.
Senator Morgan. — That is to say, the pelagic hunters got 08,000 an<l
the United States 7,500.
Mr. (Jori)i'.iJT. — Yes, a slightly larger number— about 5,000 more,
owing to the dates overlai»i)ing.
Senator Morgan. — Is the same state of affairs existing now — is there
any evidenc*' on that sul»ie<t?
Mr. CoritEKT. — I do not think we have any evidence as to that.
The President. — That is pehigic sealing outside?
SeTiator iMoRO AN. — Yes, the ])elagic .sealers got (i8,000 and the United
States 7,500.
The President.— On account of the luodm virmdi.
Senator Morgan. — Yes, we were limited to 7,500 and the pelagic seal-
ers got 08,000.
.Mr. C( >rDEKT. — And the next year, as far as we can get at the figure,
it was 45,000, all outside the Hehriug Seu.
I; but
1891
i) and
liiore,
tliere
mtcd
I seal-
re,
ORAL ARGUMKNT OF FREDEUICK R. COUDKRT, ESQ.
373
Irui*
Tlio IMJKsiDKM'. — Inside have you any estimation?
Mr. CouDERT. — No, they were interdieted.
The President. — IJut. in fa<'T, they wtMe there?
Mr. CoUDERT. — No, the seals did noteonie into our house; the sealers
nitereepted them before they jjot throuj;li the door. Tlie report, Gen-
eral Foster says, is, that less than r»00 were taken.
The President. — The s«'izures were etteetual and prevented any sort
of |)elagic sealinjj inside.
Sir (JiiARi.ES KussKLL. — No. it was the result of the ajrreenient under
the modm riirudi.
Tlie Presidiont. — liut before tiie vtiKJiis rivendi was agreed upon
there was no pehigic sealing inside.
Sir Charles lii ssell. — Yes.
Tlie President. — That is what I ask, what was the anuiunt of pelagie
sealing previous to tlie modus rirnidi.
Mr. CoUDERT. — I will ask the President to let me take the tables.
I cannot take each year alone. We iiave tables prepared on that point;
I will submit them to the Tribunal i>i a few minutes.
I stated to the court from memory the ed'orts taken by suppressing
noise and even snu)king, to prevent a disturbance in tiie rookeries, and
1 think there is evidence on tliat very point. We liave collated the tes-
timony on the subject of pelagic sealing, and I \villsul)mit it to the high
Court before the cU)se of the argument.
The President. — You will tell us that in your own tinu'. It is bet-
ter perhaps not to interrupt you.
Mr. Coudert. — Yes, I confess the carrying of llgures fiom 1870 to
1892 in my memory without memoran«la 1 find dillicult, and possibly
misleading.
The President. — I mean that, if you argue that the decrease is
exclusively imputable to pelagic sealing, and give us i)roportionate fig-
ures for that decrease, you m st also give us prop(utionate tignres for
the destruction by iielagic sealing — tlie destruction inside as well as
outside, if any took phuie.
Mr. CoUDERT. — Yes. you will understand that I give the general fig-
ures. As I stated at the outset there was a small pelagie destriu;tion
which grew up to 12,009, and eventually exi>andcd to (19,000; and even
when there was an average, if you i>lease, of only 12,999, and those
were entirely females or to a great extent. — say more than half, to put
it at the least, the cumulative elVect of that destruction in a few years
was sutticient, prima fade, 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 12,99(> and it extended over S, 9, or 19 years with its
cumulative efTe«*ts, 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 caus(! was there than the one thus indicated ?
Going back one moment (1 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 in allowed to go near a rookory uiiIchs by special order of the Treasury
Agent, and when tlrivinii frimi the liaiiliiig grounds, tlie natives iirc forbidden to
smoke or make any unusual noise, or to do anything that might disturl) or frighten
the seals.
Of course, the prohibition against smoking and drinking whisky
would make our field of operations restricted in choosing proi)er
374 ORATi AROUMENT OF IKKDERTPK R. COrDF.RT, KSQ,
Agents; but, at all rvciits, tliosc arc anioiip tlio olcnu'iits of j;<mkI order
iiitro(iii(-<Ml there, and hIiow the extreme eare taken that these animals
on the breedinfj-rooUeries shall not be distnibed.
1 will now read more on this same question of increase, and 1 need
not apologise for dwelling on it because of its importance — it is lirst
important to sliow the decrease, and then to show the cause; I have
gone into the cause in general t«'rms, and I will now pursue it by giving
llgures. This is from our <'olIiited testimony, jiage 278; Anttui Alelove-
doff, whom 1 have quoted belbre.
(Q.) Hnvo von noticed nnv perci'ptiltlc <litlV'ronr«> in flic innnhor of scala on rook-
ericH from ono yenr to anotherf (A.) Ych.
{(}.) Wliiit plimi^iCH liJivo you noticcdT (A.) Tlicy (lave been jjottin^r loss every
year for about tb«! last six yearn. ((^.) Al)f)Ut liow niiuli less in the nnnilxtr of seals
(lurinj; (lie past year than tlioy wero six yt-ars ago?
(A.) Tiie nuinher of seals this year ar« about onc-fourtii of what tli<>y were six years
ago, and about one-half of what tiiey were last year, (t^.) In what way do you form
your above opinion as to the relative number of seals on tlie rookeriesY (A.) I(y the
faet that many spaces on the rocdtories which were formerly crowded are now not
occupied at nil.
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 sliow is that the decrease was percci)tible and large.
We have the testimony of Mr. Slo.ss whowas a member and agent of
the old Company, and his testimony has been taken since that Company
has lost its <'oiitrol over the business; therefore so far as any personal
intci-est of a tinancial kind is concei iicd he is not chargeable with any
Rusjjicion on that ground. This is jtage 280 of the same book, the col-
lated testiujony:
I had nodiHiciilty in gettin;;; the size and weii^ht of the skins as ordered, nor had
my i)riMleeess.irs in th»^ oUice, tij) to and ineludiufc 1884. The casks in which we
]>:iekeil Ihcni for shipment were nia<le by the same m.'in for many years and were
always of uniform size. In ISW these easUs averafjed ab(Mit 47 1/2 skins each and in
]Si*':t(theyaveraf;<'d aboutr>()4/L)skinseaeli. asshewn Ity thereeords in ouruthce. After
this date the number increased, and in 1><8S they averaged about 5."> 5 7 skins per cask,
and in 1H8!( avcrafjcd about (10 skins per cask. These latter were not such skins as
we wanteil, but tlic superintendent on the islands reported that lliey wore the best
lie could get.
And in further ccuToboration of this we coim» back again to an unex-
ceptionable witness, one upon whom both ])arti«'s rely, i)aniel Webster,
whose testimony is on the next i>age 2S1.
In the year 18h() I thought I began to notice a falling otV from the year previous
of the number of seals on North i^ast I'oiut rookery, but this decrca-se was so very
slight that probably it would not have been oliserved by one less familiar with seal
life and its conditions than 1; i)ut i could not dis<;over or learn that it shewed itself
on any of th»! other rookeries. In 18S4 and 1885 I noticed a de<'reasp, anil it became
BO marked in 188(i that everyone on the islitnds saw it. This marked decrease in
1886 shewed itself on all the rookeries on both islands. Until 1W7 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 .f) and 4 l/U pounds. The hauling grounds of North Kast
I'oint kept up the standard longer than the other rookeries, tiecause as I believe
the latter rookeries had felt the drain of open sea sealing during 1885 and 1880 more
than North Kast i'oint, the cows from the other rookeries having gone to the south-
ward to feed, where the majority of the sealing schooners wore engaged in takingseal.
I think that the fact is sufticiently made out, then, that at or about
tliis period a decrease was observetl in the number of the seals — espe-
cially noti(!ed in the male seals because those were the ones that most
intmediately concerned the lessees an<l their agents; also that it was a
continuous decrease. I think it is well established that this was the
period during which jjeingic sealing was born or at all events culmin-
ated: that from 1880 to 1887, 1888, 1889, and 1800, it kept constantly
:: I
ORAL ARGUMENT OF FHEDKRTCK R. COIJDKRT, ESQ. 375
incroasiiifi. Wlietlicr that was the only source of the decrease or not
reniuins to be ascertiiined.
Senator .Morgan. — Mr. Condert, have you any fijrures to .shew what
wa8 the number of vesHels that were en};a(;ed in |>ehi;;'ie sealing in 18U1
and 185>L»f
Mr. CoiiDERT. — Ye.s; I intend to produce them, and to give the
names of the ves.sels and the numbers, and to shew the enormous increase
of this business.
Senator Morgan.— in 18!) I and 1H<)21
Mr. (Joi^DEBT. — IJ|> t«> 181H, and even 1S!»2.
Mr. Justice Harlan. — On i)age 207 of tiie British Commissioners
Hejjort there is a Table for IS'.U, and |uevious years, which siiows that
in J.S'.H tliere were oO ('anadian, and 42 American vessels, the appro.xi-
mate catch for this year being (iS,()(M>.
Mr. CoUDERT. — Yes, if Mr. .hutice IJarlan will pardon me 1 will come
to that and give those ligures with such amendments as we think we
may properly introdn(!e.
Senator MoRciAN. — The i)olnt I am on is wiicther the modus vivendi
which has been adopted twi<!e, had any effect to stop pelagic sealing
outside the liehring Sea?
Mr. ('ouDERT. — No it naturally would not.
Sir Charles Iti sskll. — It had no operation outside there.
Senator Morc^an. — For that rea.son ?
Mr. Cot'OERT. — If it was in oporation it would have that effect, and
not being in oper.ition it wouhl not have that effcj't,
Senator Morgan. — I understand .Mr. Coudert that there has been an
actual increase in the tonnage or the number <»f ve.s.sols engaged in
pelagic sealiiifi since the first Modutt rivendi was adopted.
Mr. Coudert. — Yes; it was a stimulation to killing seals in theXorth
Pacific the moment they <;oul<l not kill them in the IJehring sea.
The l'Ki;sii)ENT. — Have you statistics about wluit went enduring
the time the Modus rirendi lias ajtplied?
Mr. Coudert. — We can produce tliem.
The President. — It will be as well that we have statistics also, if
you have them, of what goes on on the island.s — I do not say in point of
killing seals, but in point of ob.servation as to the number of seals.
Mr. Coudert. — 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 isolate«l years.
The President. — Take it in the proper time.
Mr. Coudert. — Yes, we will iJrtMiiii e what evidence there is ou that
subject. What I have tried to establish before the (>»urt is tliis — that
pelagic sealing developed witii great rapidity at a certain time; tliat
after it had reached a real and .serious degree of destruction a decrease in
the seals was observed; tiiat that decrease continued in a direct ratio
to the number of .seals killed at sea. So far tho.se i)ro|K)silions are
established, I think I may say, antl the burden will he on the other
side to show other rea.sons. This killing was cumulative. It was
increasing in its effect whenever they killed females as well. Take the
effect of killing r»,(HM) bearing mothers — if you plea.se only 5,0(M) — in
1880. Well, it is shown that these females will bear 12 or 115, or possi-
bly more, offspring. Now calculate the enormous destruction, an<l how
it w<mld be felt after three or live years; it is enormous — it is aim' st
incalculable; and I need iu)t argue that even, if it is ke])t up on a 8ii..^ll
scale, it is slow destruction, because it diminishes, as Mr. Carter say.s,
the birth rate. Nothing can be fatal to the herd that does not dimiu-
370 ORAL ARGUMENT OF PREDKRirK R COUDERT, ESQ.
isli the biitli rate. Anythinp: tluvt aOects it in tlie sliglitest degree is,
by its teiuleii(;y in that direction, fatal.
iScnatt)!' Morgan. — Mr. Coiidert, will yon be able to fjive the aver-
age value, per skin, of the fur-Heals in the markets, in the years 181H
and 1892.
Mr. CoUDEKT. — I suppose we can do it — we can prepare such a
statement as that. Of course, this modus rirendi was a very expensive
expedient to the United States, Instead of killing them in the lieh-
ring Sea the other parties killed them in the North l'aeiH(% and killed
more in the North I'acilic because they killed less or none in the Beh-
ring Sea. But, on the other hand, the Unite«l States liad consented to
tie its hands, and the loss was very great.
The President. — My learned (tolleagne asks whether there has been
any influence from this modus virendiou the prices of sealskins?
Mr. CouDERT. — 1 will see if we have statistics of the prices; I am
unable to say that at the moment.
Senator Morcjan. — I wanted to know how much money the i)elagic
sealers were making out of it, and how much money the United States
were making (uit of it — I do not care whether it iucreiise<l the in-ices.
Mr. CouDERT, — It will be easier for me t<» tell you how much the
United States lout out of it, because it was a dead loss to the United
States and was entirely a onesided bargain, in one sense. Tempora-
rily it resulted in a veiy large loss to the United States; but as the
United Sltates are anxious to save the life of the herd, then of course
it would <!()nsent to a temporary loss in onler to produce a permanent
benefit.
Senator MoRtiAN. — It raised the number of seals as I understand you
that was killed by the authority of the United States above (J0,000 up
to 75,(MK>.
Mr. CouDERT. — The modm rirendi didf
Senator MoRciAN. — Yes I do not say the modus ^lii^endi, I say the
practice of pelagic sealing took (58,(MM) seals.
Mr. CouDERT.— Yes, against our 7,000.
Senator Morgan. — Against 7,.5(K)?
Mr. Coudert. — Yes; the only difference being that at sea they did
not make discrimination; ours entirely consisted of nmles.
Senator Morgan. — It actually resulted iu si larger killing of the fur-
seal than the United States had ])ermitted on the islan<l ?
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 <lipIonuitic correspondence that i>elagic sealing should be inter-
rupted on the North West coastf Perhaps in the Senate of Washing-
ton you had some infiu'mation about it?
Senator Morgan. — Not in the modus vivctidi. 1 think not.
Sir Charles Kussell. — Not at all. A great part of the catch
after the modus rivendi Avas on the Russian an«l .Ia[)anese side.
General Foster. — More than on the American sideH
Sir Charles Russell. — That 1 do not know.
General Foster. — It was nuxch 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 tliat 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.
1
t
t
1
t
t
8
i
c
a
u
ORAL ARGUMENT OF FRKDERICK R. COUDKRT, ESQ. 377
the
Sir (liiAui.KS llussETiL. — Their case was not bused on that ground
at tliat time. You will hear the reason why tliey did not su}rK«'!^t it.
The ruKSiDKNT. — Mr. Carter discussed at some length the eatclies
of seals whicli l\ave taken phice on the North West coast; so the mat-
ter is a question of interest and has a <;lose connection with the
American (3ase.
Mr. CorDKKT. — In the first phice let me say if you read Mr. Phelps'
letters you will find that he did claiu)...
The President.— That is what I want to know.
Mr. ("OUDERT. — You will find that he did claim that there was great
destruction of the seals on the North Pa«!iflc, as well as in Behring Sea
and he claimed tiiat it should be stopped.
Senator Mdrgan. — That was Lord Salisbury's proposition.
Sir Charles IUssell.— Yes, that they would not c<>'>s(!iit to.
(ieneral Foster. — liecause Canada would not allow us to <lo so.
Mr. Coudert. — Perhaps we were right — |>erhaps we were wrong.
Sir Charles Russell. — You were claiming territorial sovereignty
over Jiehring Sea, and you said you had no authority outside.
Mr. CoxJDERT. — We were claiming territorial sovereignty, and that is
what we are claiming to-day, and the rec«»rd shows it,
Mr. Phelps' letters shew it, and our case states the fact just as wo
are stating it to day, and gives references in oider to show this is not a
new idea; and the Treaty, (which is the law of this Tribunal) says what
we claimed and what we claim to day. I also state in all fi'ankness,that
this subject v/as not so thoroughly understood, and the great destruc-
tion which was reaped on this tlock 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 iirgnment, if you ])lease, that we did not demand
enough, what do both nations want today? That is the cjucstion.
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.
ISlr. Coudert. — Jt is the professed object of the Treaty.
Mr. Justice Harlan. — It is not so much what both nations desiro,
but rather what they ought to have.
Mr. Coudert. — \Vhen 1 use the word "want", 1 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 fsuts is
Sir Charles Ktjssell. — That was not my observation.
Mr. Coudert. — The questioli on the facts is, what we cmght to have
in order to tarry out tlie joint purpose of the two nations — That is,
the preservatiou 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 rirenai. There is a sort of contradiction between the exten-
sion you give uow to your present requirements, and what has been put
into the Treaty as the moHns vivendi. That is merely what I want to
call attention to — nothing more.
Mr. CotiDEKT. — I am much obliged to the President i>i the Tribunal,
and I can only answer it in this way *
The President.— There is a certain difiBculty which I think it is
useful for you to bring to light.
II
378 ORAL AKfJUMKNT OF PHEDERICK R. COUDERT, ESQ.
r
Mr. CoiTDERT. — I uiKlerstand we {jot the best 've could in the moduH
Vivendi.
Mr. I'HELPS. — Yes; itwasthesuhjecitof a jjroat deal of controversy.
Mr. .Justice Harlan. — Perhaps 1 may refer to the fact that Presi-
dent Harrison, (or ratiier Mr. Wharton in a letter wrjtten by directiou
of the President before the moduH rirendi was signed), recoy:nized the
fact that rejjulations were retjuired for the i)r('servation of these fur-
seals in Behrin}; Sea, and also in portions of the North Pacific.
Mr. CouDERT. — Yes, and that is shewn by the Treaty it8«'lf, which
speaks of the seals at Pribilof Islands and remrting thereto wherever
they nniy come from. Those that resort to the Pribilof Islands are the
ones that we claim i)rotection over, and those in the North Pacific
belonjjing 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 tliought right, 1 do not think, with
all re8j)ect Mr. President, that ought to be imputed as a waiver or
abandonment of our claim.
The President. — I do not impute it as a waiver; I merely ask the
fact whether you urged ui)on that question diplomatically before the
modus Vivendi was signed at all. If you did not ask for it, of course, it
would not be conce<led. It is no reproa<'h IVom nu'.
Senator Morcjan. — I do not know wiiy it would not be (ionceded, if
it was the purpose of both Governments to jjreserve the seal herd.
The President. — That is why I enquired whether you had not urged
it at the moment?
Senator Mou(tAN. — We were not asking anything, I take it, from
Great Britain.
Mr. CoUDERT. — I think this question can be settled by the corre-
spondence, and I aiii ghul it has been suggested, because I can read a
few lines from the correspondence, althougii it is getting away from my
subject; but this may be imi»ortant. 1 will read from the Appendix to
the Case of tlie United States, volume first, page .'ilo, a letter written
by Sir Julian Pauucefote to Mr. Wliarton, dated Washington, June
11th, 1891, which is before the signing of the agreement for a modus
Vivendi four days before. Sir Julian I*aun<'efote says:
NcvortlicU'sa, in view of tlie nr<i;oi)cy of tlio case, liis lonlsliip in disposod to .author-
ize iiio to sign the .Tjjr<'<'iiient in the |)recise terms fonnnlated in yonr nolo of .Inne 1>,
])iovided the qneKtion of ;i. joint Coniniission be not left in <lonbt, and that your(iov-
crninent will give an aHsnranee in some form tliat they will coneiir in a reference to
a joint (^ommiHHion to aHcertain what permanent measnrcH are neccnuary for the preserva-
tion of the fur-seal species in the Xorihern Pacific Ocean.
I have the honour, therefore, to en([nire whether the Treaident is prepared to give
that assurance, and, if so, 1 shall, on receipt of it, lose no time in eomnnmicating it
by telegraj)!! to Lord Salisbury and in applying to Ins lordship for authority to sign
the proposed agreement.
Here is the proi)()sition of Sir Julian Pauucefote 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.
SiK, I have the honour to acknowledge the receipt of your n(»te of to day's date,
and in reply am directed by the President to say that the (iovernment of the Unite<l
States recognising the fact tliat full and adequate measures for the protection of
seal life should embrace the whole of liehrin;/ sea and portions of the Sorth 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 AUGUMENT OF FREDKRICK R. COUDERT, ESQ.
379
June
modus
'
That is, the whole of Behring sea, niul parts of tlie North raviflc
Ocean
BHch nn agrcfiiiont to be sijjnod ■irrniltnncously with tlie convention for arbitrntion,
uiul to be without projndiie to the(|iif(«tionN to Ix- Riilmiitted to the aibilnitortt.
Take this in coimection with the treaty itself wltieh i)rovides for the
protection to be piven to tlie seals that restut to the islands. All you
have to liiul out is rchat ncaln resort to the Vribilof Inlands and those
seals are entitled to permanent protection. It seems to me that there
cannot be any (piestion about that.
The Tresident. — 1 think it was nbt quite out of our subject, Mr.
Coudert.
Mr. (Joui)EUT. — Not out; but I think it was directly germane, and I
am much obliged to the learned J'resident for making the suggestion.
Now to return to the subject whi<!h was immediately under consider-
ation, and as I think we all agree one of capital importance — the sub-
ject of i)elagic sealing. 1 will read rapidly what is stated in the (^ase.
I prefer to read it l)ecaiise I could not possibly state it more briefly and
clearly than it is stated in the ('ase pre])ared by (Jeneral Foster. 1 read,
I will say to my friends on the other side, from the Case of the United
States, page 1S7. It is an interesting and succinct history of this
Bo-called industry:
Open sea seiilinR, tlie sole canso of the enorinonH (lecrease note*! in the Alaskan
seal hold in the lust few years, and whirli thnatt-ns its extermination in the near
future, was carried on by the Pacilic coast natives in their canr)cs for many years
previous to the introilmtion of sealing schooners. 'J'he catch was small, ranging
from throe 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 coiisiflered.
Even alter vessels were employed in the industry, which according to Mr. Morris
Moss, vice-president of the Sealers' Association of Victoria, Ibltish Columbia, was
about the year 1872, the tlert was small, not numbering over half a dozen vessels.
Indians only were employed as hunters, and the seal.s were killed with spears. With
the introduction of scliooners to carry the canoes out into the ocean, the sealing-
grounds were extended from the area covereil by a canoe trip of twenty miles from a
given point on the coast to the waters fre(|ueiited ])y the migrating herd from the
Oolumbi'.". River to Kadiak Island. Ir 1)S84 the Bihooner Snn Jiicyo entered Itohring
Sea and returnetl to Victoria with upwards of two thousand skins.
This was the initial ])oint of piratical and destructive sealing.
Sir Charles Ki^s.skll. — The "San Diego" was an American ship, I
think.
Mr. Coudert. — Possibly.
General Fostkk'. — And she was condemned by our courts.
Mr. Coudert. — If they were American ships we avouUI not resort to
arbitration to t.ake care of our seals. 1 proceed :
This gave impetus to the trade
Then it was that the Canadians came in
and new vessels embarked in the cuterprise.
About 1885 a new method of hunting was introduced, which has been the groat
cause of making pelagic seal hunting so destructive and wasteful of life — the use of
flrearms. White men now became the princijial hunters, and where previously the
number of skilh^d and available sealers had necessarily been linuted to a few hun-
dred coast natives, the possibility of large rewards for their labors iiuluced many
whites to enter the service of those engaged in the business of seal destruction.
From that time forward the sealing fleet rapidly increased in number, until it now
threatens the total extinction of the northern fur seal.
I would refer at this point to the list of sailing vessels. It is opposite
page 591 of Appendix No. 1 of our Case, and I will ask the Court to
look at it because it gives not only the names and acctirate information
in detail, but if you examine it, it is a sort of chart which shows where
380 OUAL AKGIIMKNT OF FHK1»KI{ICK K. roiDKUT, ESQ.
y !
it l»o;;ins and l>ow it extiMids. It is an ohjcrt lesson an (Icncral K<»stor
HiiggcstH and one of sin^nlar intciost and inipoitancc. Tiic <-liart is
at |>iiK«' ntH, lu'^'inning witli tinit small lieginnin;; and extending and
expanding; as you see Tump until we hav«'
Senator Moikjan. — Is that a list of the vessels?
Mr. CouDEHT. — Yes sir; that is a list of the vessels.
Senator MoiKiAN. — What year does the last eoluniu refer to!
Mr. CoiDKRT.— The last eolunni refers to J.S1)2.
Senator MoiKiAN. — Mow many vesscils are there?
Mr. CoruEKT. — 1 have not eounted them.
Sir CiiAKLES KrssEM,. — There is a summary at the bottom of it.
Mr. ('oiDKUT. — In l<S!)ti there were lL'2. In 187.* there was one.
And there is no reason to 8Ui)i)osethat they will not eontinue inereasiiijj.
On the eontrary, there are reasons to believe otherwise.
Mr. Justice IIahi.AN. — Mr. Coudert, tin' President has asked me a
question whieli I am unable to answer. 1 see in 18!U there were 115
vessels. Were those vessels in the North Pacitic ahuie ov were their
operations atTe<'ted by the modun rirvntUf
Mr. OouDi-KT. — They Avere in both, I understand, Sir, the North
Paciflc and liehrinjj Sea.
Mr. Justice Haklan. — How did they get into the Behring Sea after
the moduH virendi of l.SJU ?
Mr. Bloixjett. — lieeause they sailed before the modun rircndi was
made and did not get notice of it. The modu.s rirtndi was iu)t signed
until June 1 "jth ancl most of them had sailed and were not intercepted.
The President. — There were no seizures in 18!)1 ?
Mr. Justice Haulan. — Yes; I think there were some.
Mr. Carter. — They were w arned away.
The President. — liut not sei/ed?
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 moduH vinitdi. 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 oi)eration.
Senator Morgan. — That is because they found the fishing on the
outside twice as good as it was on the inside.
IVIr. Carter. — The price of skins was twice as great.
]Mr. Coudert. — There is also this and it is the strongest possible
ilhistration of what the President stated a minute ago. Notwithstnnd
ing this modus vivendi in 1801, 28,888 seals were killed in Behring Sea.
Take those figures in connection with that sort of chart that 1 have
given you, that list which operates upon the /nind's eye as a chart or
object lesson and you can see what proportions this is taking. 1 will
say in addition, that it is an ever increasing business. And you are
asked by <mr friends on the other side to make provision, not only for
the business as it exists today w ith its numerous fieet, but as it is
likely and certain to exist in the future.
Mr. Justice Harlan. — 1 do not gather your statement exactly.
Mr. CoiTDERT. — 1*8,888 are figures we have of that catch in 1891 in
Behring Sea.
Mr. Justicie Harlan. — Notwithstanding the modm vivendif
Mr. Coudert.— Yes sir. That we get from our adversaries.
I Foster
cliiirt is
iiig and
of it.
ras one.
ireasiiijj.
I'd iiic a
were 11"»
ere their
e North
5ea after
eudi was
»t signeil
ircei)te<l.
you will
wo years
two last
when the
J on the
])ossil)le
thstiiiul-
liiig; Sea.
it 1 have
ehart or
|.-. I will
you are
only for
as it is
tly.
11 1891 in
ORAL AUOIIMENT OF FltEDEUICK It. fOUDEUT, KSlj. 381
The PuKsiiDKNT.— lVrha|»s Mr. Blod^'ett will tell us whether the
sealing? has yet be/jfiin in this year. You say that in ISJU the setiling
bad bejfun before the notilU;ation of the motiiis rininli eould be coni-
inunicated. How is it this year?
Mr. JiLOixiKTT. — The notitieation was not made until the l/ith of
June. The seal injj vessels left Vi<rtoria, I'ortTownsend and San Fran-
ciseo several weeks before that ami w(ue out^on the (»cean. They K<>t
uo notice. S()nu> of them were met by the »!iuisers of the I'nited States
in the Hehring Sea and warned out. Others remained there and nuule
their seizures.
The rBESiDENT. — I am afraid they nuiy fjo on this year, and there
Mill be an increase.
(jreneral Fosteu. — I think I <an make it (dear, if you will allow. In
addition to what has been stated as to IS'M, in 1SJI2 under the modun
Vivendi the presence of vessels in liehrin;;' Sea with llshiii}? equipment
on board was a sutlieientjustiticatiiui of her eondentnation without any
notice. That is the dillerence between the comlition of things in 181H
and in 1.S02. Consequently oidy a very few vessels went into Hehring
Sea in 181)2; because if tliey had gone in it di<l not re(|uire a notice
previously, but their presence there would be the <'anse of their con-
demnation. The connnaiMler of the American th'Ct reports tliat less
than noo seals were taken in Behring Sea in 18U2. That modus viirndi
will be in operation the present year. The se.iling season has not yet
begun in Behring Sea. The seals have not reached there.
Sir Chaules Russei.l. — Tomaketlie matter intelligible, if \ maybe
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 iiehring Sea claimed
by the United States. The other portion of the Behring Sea t(» the
west of that line was not at all atfect»'d by any of these arrangements
embodied in the modus riirndi of l.SDl or of iS92: and the result was
as Mr. Blodgett has said, some of the vessels did go to the eastern
part of Behring Sea betbre the promulgation of the modus rircndi; but
after that pronuilgation they went to the west of the line and continued
fishing along the Japan and Kussian coasts.
Mr. Justice IIaklan. — Was this 28,bO(» which Mr. Condert referred to
the number of seals taken west ov east of that line?
Sir Charles Ktssell. — A large part of it, or practically so of the
year's catch to the west and south.
Mr. CoiTDinrr. — To the west, on the Russian side.
The President. — In the free waters.
Sir Charles Kissi-ll. — 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 i»roMuilgation of the modus virendi; but substantially
the bulk of it — the larger ijortion — to the west and south.
General Foster. — I am very sorry to call in (nu'stion the statement,
but I think the facts will show, on critical examination, that the 28,(100
reported are the catch of Behring Sea ]>roper, 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,(K)() seals were taken
in what are called the American i)()rtions of Behring Sea.
Mr. CouDEUT. — We have also in connection with this a map or chart,
showing the position of the sealing vessels seized «»r warned by the
Government of the United States during the season of I8i)l.
Sir K. Webster. — What is the number of that chart ?
11
382
OKAL ARGUMENT OF FKEDEKICK R. COUDERT, ESg.
Mr. CouoKRT.— It iH No. 0 in our hook of iiiap-s 'sStM/.urcH, 1891",
uiid it will .show that thos« .shij^s tht'ii had no snuples an to heing in
our waters htM-anse (nery one of thoin, aw indicated on this map, are in
American water.s. Williontdwellingupon tliat map, I simply call atten-
tion to it.
Sir (!hari.KS Kussiu-l.— Yon mean east of the Miiet
Mr. (Joudkkt.— Ves. We liave it, tiien, that in l.s!M, notwithstanding
the ol)8ta('les interpos«'d, there were 28,888 .seals killed by the pelagic
sealers. We take issne with rar learned friend on tiie other side when
he assigns a Knssian domicile to those .seal in the main. On the con-
trary, we claim that they wcie canght, if not all, at least the greater
part of them, on onr side of tlie Hehring Sea.
Bnt I i)ropose to go on with tiic (jnestion that was ninler discussion,
and to read now moio about this sealing from page 181) of our Ca.se.
That is as to the method :
The veHHel comnionly uhoiI in Houliiijj is ti scIkkhkt liuiKinj; from twenty to one
hniKlrtxl tintl lil't.v toiiH burden; the iiveriiKii tonici^ro |i)-i' vt-sKt;! for the Victoria fleet
in 18!I2 being tl3.2 tons.
That is the average tonnage per Vessel, 03 and a fraction. 1 continue:
The iiiiiul)or ot'hiinterH and (.'unix-s or boats ciirrifd by ii seiiler ib'|M-ndH upon the
si/.e ol'tlie veHse), but the averiige iiiiiiibt'r of canoes is )>et\vcen ten and sixteen, each
manned liy two Indians, and when tlie huntc is are wliites the boat^' <;cnerally nnni-
ber tive or six. In Home castas liotli Indians and whites are eni|)loycd on the same
vessel. The average niiniber of men to a vesscd in IKSMt was twenty-two.
Tlie Indian hnnter almost invariably uses a Hjtear, and tlioiigh in tlie bmt two or
three years lirearms have l)een carried in tlie canoe, the ])rinci|ial weajton used by
him is still the spear. A full description oC the spear, canoe, and inannerof hiiutiii};
is ^bei by Lieut. .1. H. l^iiinnan, wiio accompanied some of the Indijiiis in their
eanoe during a liiintiiig exciirsio.i. The most expert spcarsmen ar(^ the Makah
Indians of Neali Hay, Washington. The Indian, from his mt^thod of hunting loses
very l«tw seals that he strikes, seciiiin;; inuirly all.
The white hunter, on tlm contrary, loses a great many seals which he kills or
wounds. Each boat (contains a iMiiit-stcerr and a boat-ituilcr; the hunter uses a
rifle, a shotgnn, or both, the shotgun bcin^l .tded with bu(;ksiiiit. A minute descrip-
tion of the methods employed liy both wiiite and Indian hunters is given by Cajit.
(J. L. Hopper, commander of the linited States revenue steamer Corwin, who was
many years in the waters of the North Pacific and ISehring Sea, and makes his state-
ments from personal observation.
1 will give the Tribuntil .some figures. I read now from page 366 of
the Case of the United States, front the reports of the Jiehring Sea and
the report of the American Comtnissioners. We have the catch for all
tlie years from 1872 to 181H, on ])age 3(i6. The sources of inf(n*mation
upofi which the table is based that we submit to the Tribunal are given
in the note, ami they will be found to come from sources which are not
open to suspicion, but if they <!0uld in any way be suppo.sed to favour
either party, it would be our friends on the other side:
The number of seal skins actually recorded as sold as a result of pelagic sealing is
shown in the following table:
Year.
Xo. of
skins.
I Ytnr.
No. of
skins.
1872
1,029
1 1882
17, 700
1H73
] 8s;i
9, ia5
m7t
Lit 19
1,010
2, 042
5, 700
9, .'■>9;t
12, 500-f-
i:!,(;im
13, 541
1 18S4 . .
* 14, 000
1875
lH,s5
i;t. 000
lH7l(
1 880
:t8,907
1877
1887
1888
3;t, 800
1S78
:t7,789
]87it
18K9
40,998
1880
IS'.m
48,319
1881
1891 .
62, 508
'Kuiubor estiiuatud from value giveu.
ORAL ARGUMENT OF FRKUEKICK U. (JOUUKUT, ESy. 383
1891'
Xo. of
Hklns.
The Tribunal will ubservetliat in IHtH the llpurt's iiienivon as Ol,',.'»(M».
.A luoiiMMit Hint I ifavehoinc ll^'urt's for that yrarof -H,s,ss, but that was
<ji.l.v I'u'hrinnSi'a \\v tJH'ii spokf of ; tlu' total «'at<rh b«'iii};(>i.',.")(»o, Ifaviiitj
Htill upen the (|iu-.stion that Sir('harh-s Kiissoll HU);;;(',st('(| a inoiiicntago,
that some or many or few wvw taken from the Kus.><iiin Ni«l«'.
The I'UKSinr.NT. — Tin- Itrititsh table that has be«ii inentit)n('(l, oii
paK« -'*«^ <*t the iiriti^h (.'omuiissiuners Itcport, gives tiie, total for ISUl
us «;h,<ioo.
Mr. CoUDi'.KT. — Whiih makes it still stronger.
The Pj{i;sii»r.N r. — Their figures are stionger than yours?
Mr. CoiDKKT. — Yes sir. We are satisfied to take either of those
tlgnres.
Sir CiiAUKKS Ri ssi:ll. — Our paitial Commissioners!
Ml'. CouDEitT. — They may make a mistake on the side of right, of
«!our8e. Anybody miglit.
Mr. Justiee Haulan. — Tlie ditVerence, iteihaps, is explained by the
faet tliat the Mritish table approximates the ci* h of botli Canadian
and United iStat«'S vessels, vhereas in your labli -lie Canadian eat«'h
only is given, and the I'nited States eat<'h is not ;i>en.
Mr. CouuiMrr. — 'Ihen 1 take back what I sai("i. The tribute to the
British Commissioners is undeservi'd.
Sir CllABi.ES KM ssKj.i- — It iiuludes the united Stati ., eateh ex(e[)t
that v"'*'ou which is sold in California.
Mr. .lustiee Haki.AN. — To wliieh table do yon reU r.'
Sir Charles Hi ssi:i i,. — The talde on page .'>IH'», wliieh has been
referied to. The eateh of Ameriean vessels sold in San Fraiiciseo is
not inehuled. That is the oidy thing that is excluded.
The IMJESiDEN'i'. — 1 think we eau agree by this eoiiii>ari>oii ttiat
both tables have been drawn out very faiily, and with great credit t<»
both parties.
Mr. (!ori)ERT. — 1 hope the Tribunal, notwithstanding my d«'sire to
acquiesce, will not hold me as endorsing the opinion tliiit tim tables pre-
pared by our friends on the other side are impartially drawn, for I do
not believe they are.
The President. — We know y(mr opinion about the Hritish Commis
sioners, and perhaps we had better leave that.
Mr. CouDERT. — When 1 find fault with what the CoMimissioners
aver, I hope I need uot repeat what 1 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
witliout the slightest hesitation; but 1 think it was one of your fellow-
diplomats, Mr. President, who said: "(live me a pen and figures, and I
will prove what you like". That is true in diph>macy, and it is true in
Commissions also.
The President. — I think, Mr. Coudert. you can show that it is iu)t
nci'essary for you to have a pen and ink for that.
The Tribunal here adjourned until Tuesday, May U, ISU.'J, at 11.30
o'clock A. M.
17, 7110
9, 1'J')
> 14, IXlO
lit. 00()
3«,W)"
3;i, Rlltl
;t7,78'.t
4U.998
48,H19
62, 508
!i
NINETEENTH DAY, MAY 9^", 1893.
Mr. OoUDERT. — May it please the learned President and tbe Arbi-
trators.
Before i)roceeding with the regular course of the argument such as I
was pursuing at the hour of adjournment, 1 want to ask the attention
of the High Court to a printed statement thatluis been compiled uiider
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 tl»e effect of tiie modus vivendi; and it was plain the modus
iiivendihad operated entirely to the disadvantage of the United States,
and that, while the United States liad tied up its hands and had pre-
vented itself from going on witli 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 slaugiiteretl. 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 tlie Case.
The seals killed on the Pribilof Islands iu 1890 amounted to 21,238.
That is our number of seals killed. The pelagic catch, according to
the British Commissioners Eeport, amounted to 51,055; being a total
catch of 72,893.
In 1891, the year following, under the modus rivcndi 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; nuiking 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,.')00. In the pelagic catch
there were captured 73,391, being a total catch of 80,894.
Now, your Honours will see from this statement tluit, in 1890, 21,000
were killed; in 1891, only J2,000, 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 yon will see, very largely increased during
those three years. The natural result, of course, was to aii'ect the prices
of the skins: and these we have given.
In 1889 the average price )er skin was $0.83. In 1890 it rose to
$10.70; and, in 1891, the average price i)er skin was $15 less one cent.
Senator Morcian. — Was that the price in London?
Mr. CouDEHT. — 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 Avas to send the price of
skins up more than double. That is from $6.83 to $14.99. There was
luiturally 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. Iu 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 tha
United States had been practically abrogated, we find the ves^tols
engaged in sealing correspondingly increasing in nnniber. In 1890 the
number of vessels was <il. In 1S!»1 it Avas 11") and in 181>li, iL'L'. VViiat
the effect of a protracted modus vieendi would be it requires no prophet
to tell. *
The following is the Table handed in:
Pribilof and pelagic catches for IS.OO, 1S91, and tSD3.
1890
Seals killed on Pribilof Islands ot oqq
( {/. A'. Cfl«e, vol. II, p. 112). '
Pelagic Catch -,i r>-.^
iUr. Com. Report, -p. 201). '
Total Catch qo 893
1891
Seals killed on Pribilof Islands 19 071
(U.S. Case, vol. I, p. 333). '
Pelagic Catch ns nrm
{Jir. Com. Report, -p. 201). '
Total Catch ^0~071
1892
Seals killed on Pribilof Islands 7 500
(Modus Vivendi). ' '
Pelagic Catch 7q onj
{U.S. Counter Case, J). i58). '
Total Catch 80,894
AVKHAGK PRICK OF SKIXS AT VlfTOKIA.
1889. Average price per skin , $fi. S3
1890. Avernge price per skin ......[[.... .V.. KKTQ
1891. Average price per skin hi.i)\)
(U. S. Case, vol. H, p. o'3l).
WAGES PAID HUNTKHS AT VICTORIA.
1889. Price i)ai(l per skin $2 to $3
1890-91. Price paid per skin .^ .!!!...!.!!..!!.!...... " 3.50
1892. Price paid per skin | . 4 00
{British Counter Case, vol. II, p. 222).
VESSELS ENGAGED IN SEALING.
1890. Number of vessels CI
1891. Number of vessels !...!..!!..!...!" H.",
1892. Number of vessels ]'>j
(U. S. Case, vol. I, p. 590).
I want to supplemcTit this by a paper which is not i>rinted 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 floefc in ISOl. This is a matter of computation, and I
shall not dwell upon it; if my learned friends ttnd it iticorrect they can
state their corrections. Table A of the IJritish Commissioners' Report,
pa^e 205, contains a list of Canadian sealing vessels, with the date of
then- 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
pf the latter, 29 were found and warned on the American side of the
B S, PT XII 25
386 OBAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
■ l'
i.
m
'1
III i
^i
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 approxiujate result. Catch in Americfin
waters of Behring Sta 23,041; on the Asiatic side 5,847, being a total
for the Behring Sea i^atch of 1891 of 28,888. 1 repeat, we will hand a
copy of this to our learned friends on the other side.
1 will now come back to the question I was discussing, namely, the
nature, chai'acter, and ett'ect, the fatally destructive eftect of pelagic
sealing; and it is hardly uecess.ary to argue, but I shall to some brief
extent endeavour to i)rove that if 1 have shown enormous slaughter of
the seal and that of the most cruel, and mischievous and destructive
kind, it is unnecess.ary 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 1 have proved a large
number of mothers to have been killed during a long consecutive num-
ber of j^ears, the result is inevitable, and the birtli-rate must have been
most seriously diminished on the land. The catches from 1871 to 1882
average over 13,(»U0for Canadian vessels alone, and this, of itself, with-
out further explanation or comment, is sulliaient to account for the
decrease which was noticed on the Pribilof Islands in 1884 and 1885.
Of course, there was a decrease but it was not noticed until then.
Naturally they would only notice it when they came to picking out the
young males and then the su|)i>ly, or, as it is called, some times, the
crop, of three or four years before not coming up to the usual level, it
Avas observed that the supply of killable males was delicieut.
It is probable that Anunican 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 fenudes, and that a certain
nund)er in a<ldition were lost. How large the nuniber 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 nuK'h greater than that of water, of course is a matter of con-
jecture. Our ]noofs estimated this very high, as high as 50 or 00 per
cent. The jjroofs on the other side 5, 0, 7 and 8, and even as high, I
believe, as 10, though it is in i)roof from their own witnesses, that what
is called the green hunter — and the green hunter is a chronic appurte-
nance to seaHng on the sea, as I have shown, — misses 25 per cent at
least of those tliat he shoots or shoots at.
Indeed with regard to pelagic sealing, there is (me 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 woiTld go into his cattle yard, killing right and left
males and females, the bulls and the cows, wcnild probably have a
committee ajtpointed for him to take charge of his estate, because he
was unfit to nuinage it himself. This is precisely the same, except th.at
it is almost as bad as though this cattle owner or farmer were to put
all his gravid I'emales in one barn yard, and proceed to slaughter them
in preference to all the rest — that is the only ditt'erence that I can
see. It is indiscriminate, I say, uud 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
Coinuiissioners, state it. There is no idealism about it. Section (i'M.
By the pelagic sealers niitl by the Iiiilian Iiuiitors aloug the coast, fur-seals of both
sexes are killed, uikI, iii<leeil, it would be uureasouable, under the circnuistanci-H, to
ex]iect that a distiuctioii should be made iu this respect, auy nu>re than that the
angler should discriminate between the sexes of the tish he may hook.
It is absolutely true. If you permit ])elagic sealing:, do not ask the
imiM)ssible. Tell the sealer, "Go on, call it tisliinjj; treat it as flshinj;,
and have no more sentiment or regard upon the subject than when you
drop your baited hook into the depths of the Ocean and pull up a fish."
The eflfect 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, llere is the experience of the
world as taught us in the Southern Seas. That map is an object-lesson,
to which 1 will call the attention of the Court in one moment; but first,
let me read what the British Commissioners, at section 8G0, say upon
the subject:
It is a nuitter of some ditliculty to estimate the total nuuibor of seals taken in the
South Seas during the period of the ex<e88ive energy of the gr3at sealing industry.
JJut there are actual records which, adtled together, bring the acknowledged total
to more than 1(>,(»0(),(I(H).
These seals were taken from about thirty difVcrent island groups or coast districts
on the mainland, and they were all taken by the one method of indiscriminato
slaughter *m shore.
It is probable that this wholesale slaughter did not extend ovcsr more than seventy
years, l»ut it is certain that at the end of tlie period the fur seals wer<j so terribly
reduced in numbers that even the sixty years of subsc(]uent rest and total cessation
of killing have not suHiced to bring about any ed'ec-tual restoration of the numbers
of years gone by.
While the condemnation of these British Commissicmers attaches to
this kind of killing, why should it not attach etiually to indiscriminate
slaughter on the high seas? What is the ditt'erencc? It is more con-
venient; and that explains the raiding ujton 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 ntade a
wreck of fliis business; shall it not make a wreck in the future?
1 want to retul briefly from the Case of the United States, page 218.
The indiscriminate slaughter of seals in the waters of the Pacitic Ocean and
IJehring Sea can not fail to produce a result similar to that observed in the southern
h(!nuspliere, where tiie fur-seals have, except at a few localities, become from a
conuuercial j)()iut 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. Laiising, 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 hontesof the seals where they congregated in large numbers. —
the South Ceorgia Islands, Sandwich Land, South Shetland Islaiuls,
Tristan d'Acunha, and Georgia Island. Tlien the West Coast of Africa,
the Island of Prince Island, Crozet Island, Saint Paul and Amsterdam
Islands, Kerguelen Island, the South Coast of Australia, Tasnuinia,
and the Islands sotith of New Zealand.
The seals in all those localities, says our case, have been destroyed
by the indiscriminate killing of old and young males and females. If
388 OKAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
isr
the glials in these rcffioiis had been inotected and only a certain number
of young males allowed to be killed, these lands and coast would be
again populous with seal life, and tbat may be a siibjec-t lor the con-
sideration of this high Tribunal, whether the decision you will give in
this case will not extend much further than to the j)rotection of the
seals in the North PaciliJ! and the iJeiiring Sea, but wlietlier it will not
extend so far that the rights of the pntperty owners or of the owners
of tiie industry being conceded and the value of the industry to tlio
whole world being ascertained and stated, such protection would not
extend over that large part of the worhl iiiid whether theie wouhl
not be a restoration in time of tiiese valuable iierds of animals and the
rights of those who have rights there, be, efliciently though indirectly,
protected.
With regard now to the results, and to show how injurious and
destructive they are. 1 read these statements in our case from page liUi:
Tbo injui'ioiis iind <lestiiiftiv»! crrocts of (i])eii Kca seiilinjif, an dt'iiionstriitcd abovo,
can lie HitinnuMl up an follows: I{et\vet;ii eij^liiy and iiiix-ty jicr cent of tliosciilH talvcu
are ffiiiiilcNs; of tlicse at least sovcnty live i)i'r tfut are «'itlii;r ]ii('i;iiant or iiiirNinn;
that tlio <l('striicti()n of liicsc fcniali's causes tlie dciilh of tlie iiiiliorn ])ii]) Heal.s
or tliosc on tlie rookeries dt'iiendent onliidr iiiotlicrs for noiirislinient ; and. liiially
that at least wixty six pur cent of the seiil.s killed by white luuiterei aro never
secured.
As to this jast figure, it is fair to say there is a considerable diver-
gence of o[)inion among the witnesses.
Uosides tliis tlie females taken in IJelnin/r Sea liav«! certainly in the majority of
cases been iniprejjuated and tlieir deatli means not only llie destruction of the pupa
un the itsliind liut also of tlio fo tiis.
Hence, if 10,000 females are i^illed in one season, this fact means not only the
dejiletion of the heni by at least I7,r)(i0 that year but also the rediietiou of the
annual birth-rate by 7,500 each following year f <r i)robably iiltecn years —
it seems to be almost incalculable —
besides the added loss of the younj? born to tlio female portion of the pniis destroyed
wliich would lie an ever increasing quantity.
Now what do our friends on tiie other side say with regard to that?
Do lli«'y say that femtiles are not taken? Not at all. Do tliey deny
thsjt a large proport i(»n of tiie seals taken an; females? Not at all. Do
they deny that a large i)roportion are gravid? Not at all. All this they
concede. They do not agree that our numbers are correctly stated,
there may be a dilfi'reiice — and wiien we say tliat as many as *J(> [)er cent
are femtiles, and gravid or nursing females, they ditVer from us ai'd say
that our statements are exaggerated. Practically I think that makes
110 dilference provided the proportion is large.
But how many females do they say are actually taken?
That is a question w hich will probably trouble the Court.
JMuch testimony is collated in the Jiritish t'ounter Case, pages 202 to
207. We sununarize the testimony upon thiit point to which I have
called attention iu this way: that of the witnesses (13G, I think they
number in all) — 54 said that they took an equal number of nmles 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 fcuiiiles, or over. In
nmking these cahuilations it has been assumed that those who state that
they took more males tlnin females in the Pin-ilic, and more fenndes
than males in the Uehring Sea, Mithont giving us any figures, took an
average or equal nundier of males and females.
Now 1 shall not read this testimony, but tiie High Court will find it,
I think, as we have lound it, inextrictibly confused and misleading. It
would seem that the i)artie8 either had most varied and singularly
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 389
tllM
the
varied experience, or that some of tlunn, iit least, were unscrupulous
and simply testilying according to the exi};<Micies of what they sup-
I)osed to be their case. Jt is fair to the British Commissioners them-
selves to say that they ^ive 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
tiiey siiy there is an enormous number of males, on the high seas, it
being proved that all these males were born upon our shore aiul 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 establisiied.
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.
lUit 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, aiul palpably was
untrue. So that when our friends on the other side comment on the
ttstimonj'^, (much of which shows that the number of males killed is
enorujous — some say they killed ten males to one female), tliey dismiss
it in silent contempt, and here is what they say.
I will read from the Jiritish Counter Case, page 258.
From th« outlines above jj;iven relatiiiij; to the persist<'iit killinij of riuilca upon the
hrecdiiifj i.shiiids, it is likewise easy to understand that the allejjatioiis respectinj; tiio
liiijfe proportion of feuialo seals inelmli'd in late years in the j)elaj;i(! catch may, to
some extent at hast he fonuded on fact; the actual ratio thus brought about as
between the sexes renderinji it certain that in sea sealing a much larger number of
females than of males must be met witli.
I might, perhai)s (and I think if this were an ordinary case tried
before a Judge and a Jury I should), stop hero and say: Here is an
admission that more than half the seals killed are females; and what
difVerenee does it make really to this Tribunal, what dillerence does it
make to this Court oi' to the Counsel, if instead of !Hi, it is aO? The
evil is not (juite so great for to-day, but the destruction is Just as cer-
tain for the future; aiul we are trying to provide for the future. And
when our liiends on the other side say there are nu)re fennilcs because
you killed the males, the fact, lu'vertheless, remains that, whatever
may be the cause, you are going to the fountain of life aiul extinguishing
the possibilities of the future.
I iiin now going to ask the learned Tribunal to permit me to hand u]>
a coliiitiou of the testimony tlifit I shall read from. It has been printed
f(U' the use of the C<uirt, and it will save frequent references. I will
hand a copy of it to my friends on the other side.
Sir CiiAULKS llussKLL. — 1 think it ought to have been handed to us
before now.
Mr. CcuDKUT. — I Mill read from the evidence if you prefer it.
Sir Charles Kussell. — No.
Mr. Coi DKiiT. — it is sinqdy taken from the book. The reason is
tliis, that as many witnesses are referred to, it would occupy the time
of the Tribunal 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 OP FREDKKICK R. COUDERT, ESQ.
We will begin by producing what may perhaps be the most satis-
factory eviilence, starting, of course, with this idea — that it s a fact
in the case that more tlian half these animals are females; but I
ought to i)reface my reading with this remark, that we took the testi-
mony of a large number f)f JJritish subjects, men who, certainly as far
as nationality is concerned, would not lie prejudiced in our favor. We
went to the most respectable sources in England and in France; we
found the very best men — the best because they knew the most about,
and stood the highest in the business ; and our friends on the other side
had the opportunity to cross-examine them. Now in some cases they
did cross-examine — perhaps in all cases — but they have given us, in a
few cases, the result of that cross-examination; and wherever they
have done it we have stated it in these printed extracts.
Sir Charles Kussell. — 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 liritish 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 tirst witness called is.
H. S. Bkvington.— Head of- the firm of Bcviii<?tou and Morris, Furriers, London.
(Case of the U. S., Appendix, vol. II, p. 551.)
It appears that the above firm was foiiiuled in the year 1726 and tliat deponent has
been in tlie business ever sinee 1873. He says:
'Jliat theCoj)per and Alaslta skins are almost exclusively the skins of the nnile ani-
mal, and the siiins of the Northwest eatcli are at least 80 per cent of the skins of the
fenuile auiiiuil. Thai prior to and in preparation for making this dejjosition depo-
nent says he carefully looked throuKh two larjje lots of skins now in liis warehouse
for the especial pnrpos*! of estimating tlu percentnge of female skins found among
the Northwest catch, and lie l)elievcs tlie above estimate to be accurate.
Mr. Hevington's cross-examination appears in the British Counter Case, Appen-
dix, vol. II, page 219; 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 Fuaskk, member of the firm of C. M. Lampsou and Co., of London.
{Case of the U. S., Appendix, vol. II, p. 554.)
Mr. Fraser is 52 years of age, and a Ihitish subject, residing in the United States.
The great majority of the skins sold from the Northwest catch are the skins of
female seals. i)eponent is not able to state exactly what proi)ortion of skins are
the skins of females, but estimates it to be at liuist 85 per cent.
The next is
Waltkk E. Martin, Head of the firm of C. W. Martin and Sons, Fiirriers, London.
{Case of the U, S., Appendix, vol. II, p. 5G9.)
The above firm have for many years dressed and dyed over 110,000 skins per
annum.
Deponent has made uo 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 giv ..t 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
we
r tliey
any of
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 391
wants to minimise as much as his conscieuce will perinif. lie was
asked :
What are the names of the brokers to whom tlioy (t!ie Henlers) chiefly consign? —
A. My Arm have had the bulk of the conHi<iiniicntH. Cj. Have yon ever had lo eon-
aider the proportion of f(;niah's in the nortii-wettt catch f — A. Not until tliisiiue.sMdn
arose, beoause prior to that no diKtinetiim wns ever made either in l)uyinjj; (*kin.s or
in selling them. They are simply sorted in quality and sixe, and not for thuiinestion
of sex. Q. Have you, with the view of inforinin<r yourNelt, on the «|neHtion, lately
examined any consignments of north-wertt seiilwkinsf — A, Ves, last week; 1 went
carefully through a ]iar(;cl of 2,000, and came to the conclusion that the ])ereentage
of females did not exceed 75 per cent, at the mo.st.
Now here is a man wlio selects his own pan-el, who is a witness for
the other side, who evidently does Jiot mean to increase it or enlarge
the i>roportion; and he fixes it at 75 per cent.
The next is
Hkxky Poi,ani>, Head of the firm of P. R. Poland and Son, Furriers, London, estab-
lished in 1785.
{Cum of the U. S., Appeudir, vol. II, page 571.)
This firm prepared the tables of weights contained in vol. II of the Appendix to
the liritish Counter Case.
That the Northwest skins are in turn distinguishable from the Cojjper Island and
Alaska skins, lirst by reason of the fact tliat a very large iiroportion of tht> adult
Bkins are obviotmhi the skins of female aninials; second, because they are all pierced
with the spear or harpoon or shot in conseciuenee of being killed in open sea.
(Crosa-exajnination by the British Government See British Counter Case, Jppendix, vol.
II, page 'JoO.)
As regards what is generally known as the Northwest catch I consider that on the
whole the proportion of females to males taken is fronj 75 to 80 jiercent; in grey
pups and extra small pups the proportion would bo 50 per cent. In the large sizes
the proportion, ou 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 HO years. He says:
I should estimate the jiroportion of female skins included within the Northwest
catch at at least 75 per cent and 1 should not be surprised ncu- feel inclined to contra-
dict an estimate of upwards of !K) per cent. My sorter who actually liaiuilcs the
skins estimates the number of fenuile skins in the Northwest catch at 90 per cent.
Probably no man in the establishment could do it better than a
sorter.
Loudon.
(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, Ai)p. to U. S. Case) that I should not be surprised nor feel
inclined to contradict an estimate of upwards of 90 pur cent of female skins in the
Northwest catch, I say that whilst it is possible with toleralilc accuracy to separate
female from male skins in the larger sizes, as regards the smaller sizes of seals under
the age of two years it is a matter of great difficulty, and often impossibility to
determine the sex.
I do not understand, however, that this gentleman means to say that
his statement was not correct in every respect when he made an esti-
mate of 80 per cent. Of course they are very few, or small.
392 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
The next is
Gkouhk Rick, rurrler, London.
(Case of the U. S., Appendix, vol. II, page 572.)
Mr. Rifo has bad 27 years ex])erience. Ife says:
In the NortliwcHt catch from 85 to 90 per cent of the okinH are of the female ani-
mals.
Mr. Rice's cross-exiimination apjioars in the liritish Counter Case, Appendix, vol-
ume II, page 246. He neither retracts nor modiiies anything contained in the above
(|uotation.
The next ia
Emil Tkichman', of the firm of C. M. Lampson and Co., Fur Dealers, London,
formed 60 years ii;;o. i'robiihly tliis firm has more exj)crience than any otlier firm
in tlie world. His tlrm iiavo liad consi;;nment of 4/5thH of all the scul 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 diflfcrcnce between the Northwest skins and the Alaska and
Cop])f!r catches is tliat the Northwest skins, so far as they are skins of adnlt seals,
arc almost exclusively tlie skins of female seals, and are nearly always pierced with
shot, bullet or s})ear holes.
The next is
Emil Hkktz, of the firm of Emil Hertz and Co., Furriers, Paris.
(Cuse of the U. S., Appendix, vol. II, page 587.)
nie firm buys sealskins at London auctions in the undressed state and has them
dressed in London, and dyed i)artly in London and partly in I'aris.
That the s;)id linn can distinguish very readily the source of production of the
skins when tliu latter are in their undressed state; that for several years besides the
skins of the re;^ular companies. . . . the said firm has bought quantities of skins called
Northwest coast, Victoria, etc. That these skins are those of animals caught in the
open sea by persons who apparently derive therefrom large profits, and nearly tliree-
quartiTs of them are those of females and pnps, these probably being less dillicult to
take than the males; that these animals are taken by being shot.
Then we have the evidence of Mr. Revillon, which I alluded to and
partly read the other day, and I will read that:
L£ON REVILLON, of the firm of Revillon Frferes, Furriers, Paris.
{Case of the U. S., ylppendix, vol. II, p. 589.)
That the said firm of Rdvillon Friires have bought during the last twenty years
upwards of 400,000 seal-skins.
That deponent believes that the firm of R6villon Freres 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 iu the majority the skins of the female seal. The thinness of
the hair upon the Hanks —
I want to call 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 niammse disappear. At any rate
the employment of these skins is much less advantageous to our business because
there is u great pndominance of small skins, which are evidently those of young
seals which are not ivilled 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 comp.anies are killed by a blow of a club upon 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. 303
Cross-examination by liritiah (iorernmeni. {See lirilixit Counter Case, Appendix, \ o]. II,
p. 230.)
Q. Tlio first point on wliich I dosiro lui cxpliination is as to the stat«Miu'iit in your
deposition thiit you liiivu oi'toii heard, jDiiI from (lill'iM'i-iit soiircos, tiitit tlio niiijority
oftii<! Xorth-wt'Nt sl<ins are l\w sl^iiiw of the lenialc si-ul. As a matter of fact, Mr.
R^viilon, have you, in tlio course of your husiness, to consider tile question of sex at
allf — A. No; we nt^ver buy or sell by sex. It is never mentioned in any sale cata-
loKue. Wo l)uy in lots, whicli are made up according to sizes, such as middlings
uud snuills, large )>ups, small pn]is, etc.
Q. Any of thesis lots then may contain both male and female skinsf — A. Yes.
Q. The (lucstion of sex, therelore, is not an oltuuint which you consider in the
price, and is one which you never have to consider f — A. That is so.
The explanation of this is thiit it seonjs to be more (as far us any
ditterence between Counsel on the other side and (»nrselv<'s are eon-
ceriied), a play npon the words. They do not eonsider the (piestion of
^e\ per He — the question is as to the quality of the skins — antl tlu'.re tlio
question of sex with other items conies in an<l Mr. Uevillon states this —
that the thinness of the hair U])on the tlanks thronffh the distension of
tlie skin ailects the thickness of the fur, and npon tlie thickness of the
fur, to a great extent, depends the value of the skin. It is not likely
Mr. lievillon ever troubled himself to examine the skins, — they come
in two, three, Ave and ten thousands and he being the head of the tirm
probably never examined a h)t 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, iind 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 atfected.
We now have the evidence of.
George Hantle, 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 ai\C sorter of raw skins
for the last twentv years. In the last ten or twelve years he has handled annually
from 10,000 to 15,000 raw seal-skins.
I have examined an<l sorte<l a great many thousand seal skins from sealing
schooners, and have observed that they are nearly all females, a few being old bull»
and yearlings.
Then the next is.
John N. Lofstau, of San Francisco, Furrier, of 28 years experience.
{Case of the U. S. Ajiprndix, vol. II, p. 516.)
I have bought and examined the catch of a great many sealing schooners during
the last ten years, and have oliserved that 85 to UO i)er cent of the skins taken were
from female seals.
The next is.
B. H. Steenfels, of San Francisco, Furrier.
{Cane of the U. S. Appendix, vol. II, p. 522.)
He lias been engiiged 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 engagcnl in the sealing business, I have observed
that fully 75 i)er 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 OKAL ARGUMENT OP FREDERICK R. COIJDERT, ESQ.
Of course, any Hkilftil man must observe these tliinjrs ns lie exnmineH
a skin, especialiy when he finds skins tliat are so riddled with bullets.
Now the next is:
SAMCKr. Um.man of New York, ineinlier of the fiini of Josoph UUman, Farriers,
onu of tlie great fur Iiouhoh of the world.
(Case of the U. S. AppeiuliT, vol. II, p. .'>27.)
The house of Joseph IJllniiiu began its fur busiiiess in 1H.'54, nn»l has dealt In fur-
seal skins ever since they Itecuuie an iinportiint article of eoniuierce. 'i'liu lionse
now does business at St. I'aul, Leipsie, London and New-Voric, .Samuel IJllnian has
]>ersonally haiuiied sealskins for the last twelve or thirteen years. Since the year
1887 he has purchased at Victoria 87,000 Northwest Coast skiiis.
Then he gives his opinion. It may jjfo for what it is worth; it is not
for that that I read his statement. Jle says:
I am of o]>inion that the nations interested slioiild arrive at some agreement by
which the killing of seals in the water will be stopped. It is true that the N«>rth-
■west Coast catches have of late years placed n\um the market a certain number of
good skins which eouhl be purcli^ised at prices far below those i'or which skins of
the Alaska catch were sold.
But I realize that this cannot continue to bo the case, for it i» a mntter of common
knoiolcdne nmonfint furriers that these Northwest Coast <'atches are coiiii»(tsed mainly
of the skins of feuuile animals, ami I uuderstand that the killing of fenuile seals is
rapidly impairing the value of the herd.
This is valuable as sliowiiiff what is a mntter of common knowledfje
among furriers, and this is agreed toby the si.x leading furriers of New
York City. T do not read it, but it may be found in the Case of the
United States, Appendix, vol. II, p[). 5L'<S-5.{2.
At page 533 Mr. IJllman further states:
I have had such experience in handling fur-seal skins as enables me, readily in
nu>st 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 skius in
such shipments are those taken from female auinuils.
We now have:
«
George H. Tukadwei.i,, of Albany, New York, Furrier.
(Case of the U. S., -ippendix, vol. II, p. 5211.)
He is at the head of a house which was established in 1832, and he has been per-
Bonully interested in the fur business since 1858. Since 1870 he has annually bought
from 5,000 to 0,000 salted fur seal skius in London, all of which have been dressed
and dyed in Albany.
In addition to dressing and dyeing, onr house annually mauufiictnrcsa large num-
ber of fnr-s«'al-skin articles. I am deeply interested iu the protection of the fur-
seals. While the Northwest Coast catches have of late years ]ilaced upon the market
comparatively cheap skius, and in that way perhaps benelited my particular busi-
ness, yet I recognize the fact that such beuelit can only be of temjtorary duration,
for I have always noticed that these catches are largely {•omposed of female skins,
and I know that to kill feimile animals seriously im])airs the herd. IScsides, skius
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 i)resent cheap skins. Hoth 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. Later on I expect
to receive two further shipments.
The lirst 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, iu order to determine how many female akius it
5Q.
?. examinoH
ith bullets.
tn, Furriers,
(lonlt In Air-
. 'I'llU )lOII8(«
I IJIliiiiin liiiH
inco tho year
ii: it is not
Kreeiiieiit 1>y
It tlio North-
in iiiiiiilKtr of
llicll Hl<il)H of
ft of common
)()sc>(l mainly
iiiiale Hcnls ia
know led jfe
eis of New
)aso of the
le, rondily in
)lo Hkiu from
the slvius in
las been per-
nally boiinht
been dressed
a large nnm-
II of the fur-
n the market
ticnlur bnsi-
iry duration,
enialo skins,
esides, skins
such uneven
ria and other
Maintain the
ike to see all
last for their
caught dur-
Quient under
ir on I expect
in New York
Government
uale skins it
ORAL AUGUMENT OP PREDEHICK R. COUDERT, ESQ. 305
onntaintMl. To perform the exaniiniktion I detailed John .1. Phelnn. This man has
been in the employ of my father or of myself sinee th'u year \iHiH. I ruganl him an
one of the most eompetent and truHtwortliy men in our survice. I have read an atll.
davit verltied by him on the ISth of .luiie.' I agree entirely with what he says coii'
eernlug his experience in the handliiu and dressing of skins, and from what I know
of his character and ability 1 believe that everything stated by him in thisatUdavit
is correct.
I am ;$.') years of age, a citizen of the I'nited States.
Then we supplement this aflidiivit by that of Mr. IMielan,
lie says:
{Case of the U. S., Appendix, vol. II, p. 518.)
As a result of the work I have ]>erformed for so many years I am able to distin^
guish, without dilliciilty, the skin of a fenuile 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 aninnil is over 3
years old, even a person who is not an exj>ert at Jiandling skins can «liscover two
prominent ones on each side cf almost every skin. This is liecause after the age of
8, and often even after 2, almost all l'emal(>s have been in pup. , .
I have been able to test all my observations as to the teats on saltetl fur-seal skins
by following these skius through the various i)rocesses which I have described.
IJnring these processes the skins I onit; thinner and thinner, and the teats morn
and more noticeable, and at an early stage in the dressing they unist be wholly
removed. There are other ways of distinguishing the skins of the two sexes. . .
1 was sent to New York from Alliany a few days ago by Mr. (ieorge II. Treadwell,
with iiistructiiiiis to go through a certain lot of sital skins, whicii I understand ho
had recently bought in Victoria, and to lind out how many of these skins were taken
from feuude animals. I have spent four days in doing this, working about seven
hours a day.
There were several men who unpacked tho skins and laid them before mo, so that
all of my tinu; was spent inexamining the individual sklfis. The lotcontained 'A,r>->0
skins. I found that, with the ])ossible cixception of two drie<l ones, they were taken
from animals this year; they were a part of what is known as the spring catch. I
know this to bo the case by tho fresh a|)pearance of the blubber and of the skin as a
whole. This atfords a sure way of telling whether the skin has lain in salt all win-
ter or whether it has been recently saltetl. I jtersonally inspec^ted each one of these
skins by itself and kept an accurate record of the result. I divided 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 ol age, but without reference
to sex.
I found in the lot 39.") nniles, 2,167 females, and 988 pups. Leaving ont of account
tho pups, tho j)crceutage of fiMuales was therefore about 82.
The great majority of what I classed as male skius were taken from aninuils less
than 3 years of age. There was not a sin;;le wig in tho lot. On the other hand,
nearly all of the female skins were those of full-grown animals. On (ivery skin
\>'hich I classed anu)ng the females I found teats, with bare spots about them on tho
fur side. Such bare spots make it absolutely certain that these teats were those of
female skins.
With regard to tho puj) 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 verj' hard to tell the sex.
All of the skins that I examined were either shot or speared. I did not keep a close
count, but 1 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 coulirm what I have always noticed in a general way, that nearly
nine-tenths of the skins in any shipmentof North west coast skius are those of female
animals.
This excimination, 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 uuithematical, and agrees with the testimony of
all the men who can be referre<l to, practically — that is of all those who
deal with the Northwest catch, hence it is of great importance. Here is
a man who bought a lot of skins without any special object, and for the
sole purposes of his business; and when the United States discovered
the fact they asked him to count these skins, lie takes them one by
39G ORAL AUGUMENT OF FUHnKKKK B. COUDKKT, ESQ.
!•
ii
one, (XTupios four lunivs to seven hours a day in <'oiititinj( tlioni, and lie
fnriiisln's tliisi'stiniati' wliudi iifrrccs with tliet'stiniiitrs we liavc already
{•iven. He makes tlie. pereenfii;ie aTxHit Si*. Mr. (Irehnitzky p)es as
Li^di as 112 per eent. The iaet is they iiie all leiMales — that would be
the poi)nlar and true way of oxpressinj;- it — practically they uro all
females.
The next is
William Wiki'kut, sortc^r of Hkiiis.
{Cane of the U, S, Appentlir, vol. TI, p. T>?u>.)
1I(* is 17 yoiirs old ; licfiinio I'orcmiiii of AmcIi and .lin'cUrl (oiio of (li(> Icadini^ fur
houses ol' New- Voik ) ill isSli, iiiul hiiir.' tlmt time hut* lu-cii suiicrintciMUMit of tho
nmiiiiriictiM'iti}; dcjiiirtiiiciit of that iiouNt-.
I liavo liaii«ll»'(i, aHsorted iiiul closely insiicctcil at least 1(M),()(H) dressed au<l «lyed
fur-seal skins.
Dnriii^ the past two years I have handled lar;,'!' nnrnlierM of North west Coast skins
((. (7. skins of animals taken in tlu^ I'ai'ilic Oeean or iu llehrinfi Sea ). 1 have aHS(»rted
all of them, and in doinj; so have specially noticed the lact that a very laru," prop»»r-
tiou were skins of female animals. 'l"o determine this fact in the case of dressed
Hkins I see whether there are any teat holes. I never call a skin a female skin nnlcss 1
can tind two sneh holes on cither side. 'I'iiese holes can L;cner:illy he distin^iiisheil
from Inillet or i)iickshot holes, of which t!icr(» are j,'cnerally a };i'cat nnmher in .Nortli-
west t'oast skins. Jn theCase of a shot hole it is always evident that the siirronndini;
fiir has been aliriij)tly cut olf, while around the ed^e ol a teat hole the fnr gradnally
ahortens as it reaches the eilj^c. and mitnr.'illy ceases to j^iow at the edjre.
I have Just looked over an ori;4inal case (»f ninety dressed and d> 1 Northwest
Coast tnr-seal skins, which have been lately received Irom l.oinloi iid were still
under seals ]daee(l on them in London. I fonnd that of these ninetv ns only nino
were tlios<> of male animals.
This mode of telling; dressed skins is in accord with what the British Commission-
ers say, sec. (),")|{ of their rejxnt:
Jt is also easy, es|(c( iiilly altiw the skins are jircparcd. to recoirni/e the fonr te.ats
of the female, I'nt, more especially in (he smaller skins, the marks ol sex aro
extreim-ly dil'ticnlt to trace. For instance, in -)ne parcid cxamin<'il in l.ontlon which
was nnu'ked "fanlty", all the skins, with the exception of three, were female, and
most of them badly shot-marked. Hnt the '^w.xt majority were yoiin^r females, giv-
ing but little or m) evidence of having suckled any youn.ij.
For further evidence by furriers upon thin [loint, nee Appendix to Argument of the U. 8,
pp. -ilO-li;).
We ask no better corroboration than this {?iven by the British Coni-
iiiissioners. So that, after all the only dilTerence is that the furriers
cross-examined by the British Cotinsel — the fiuriers who.se cntss-exani-
iuation is deemed of snflicieiit vahie, as miniinisin.n' tlie value of our
evidence, to lind a place in the British ('ouuter (.'a.se — these jyeiitlemeii
do not pliice the percentaj>e of females at less tlian 7;") per cent; so that,
upon this evidence that you thus far have, you nuist lind that the per-
centajje of females runs between 75 and JHi per cent. As I said before,
the dillerence between us is a matter of very smtill consequence.
1 now read something from ^Ir. (ir<'bnitzky"s testimony. I am pass-
inj>' to <a diiferent order of evidence — the examination of the catclies of
the seized vessels. This of course, is evidence of the hif;hest value.
There nobody has an opportunity to deceive, if so inclined, unless it
should be charjjed that the othcers of the United States have nuido
misstatenuMits.
The I'RHSIDKXT. — Do you know whether Mr. Grebuitzky was author-
ized by the llussian (lovernmeiit to be a witness?
Mr. CouuKUT.— General Foster says that he was.
The PiiESiUENT. — His position may be considered ofBcial in a certain
measure.
Mr. CouDERT. — Yes, you will Ibid he is a gentleman of high charac-
ter and that our friends on the other side speak of him as a reliable
rii, niul lie
/(' iilrciuly
y pK's iis
would Im
by uic uU
Icadini/ fur
lltlllt of till)
(1 aixl <l,vi'<l
('(•list. Hkiim
V»( ilHSIII'tctl
I'Ht! lu'opor-
' of dressed
kin unless I
■itiiij^riiislied
■r ill Xoitli-
liri'<)lllidill;ir
r ;;iudiially
Northwest
d were still
s only ninn
oinniission-
B four teats
ot sex aro
idoii wiiicli
'eniidu, uiul
lies, giv-
ofihi U. S.
isli Coni-
' furriers
•ss-cxaiM-
ic of our
untlcMuen
; so that,
the por-
d before,
•e.
am piiss-
itt'lies of
st value,
unless it
ve iiuulo
* author-
i certain
I charac-
reliable
ORAL AR(JITMF,NT OF FKEDEBICK K. COUDKKT, KSy. 307
witness. I nii;;lit say that I am reminded by my associates that it
should not Ix' infeiied from all 1 have read — althouju'li theOourt nuiy
liavo thou;;:lit I li;ive yoiR' on the very ver;;e of bcin;; tedious in lead
in^ so much — that this is more than a part of the testimony of the
furriers: and if any <loubt whatevtT reimiins after this readinj,'. tli«
Arbitratois may satisfy themselves because we huv jxiveii them n'ter-
em-es to the Appendix to the Arjiunu'iit of thei United States, which
eoidain all the testimony upon the point.
Mr. IMlKl.l's. — The same as to the evidence you are now about to read,
in respect to the searches of the vessels — a j^ood deal more there is set
out.
Mr. ( 'OUDEUT. — Yes. Upon this point there are oidy extra<'ts from
the evidence of some of the witnesses. Jt would be taxing;' the patieiMje
of the C'ourt too heavily to read it all. There is :in em.rMinus mass of
it; we have taken some of it and the Court can jud^ti tiom this what
the nature of the evidence is and what its rejil meaniii}' may be.
[ am now {join;; to read from the examination of witnesses as to the
catches of the sealin*; vessels. In the CounterCase of the I'nited
States, will be touiid the testimony of Mr. (Irebnitzky. lie nuikes the
follow! iijj: sworn statement:
This year I liavo eiinnted over 3,500 skins seized on poaehin;; vessels and liave found
JH5 i)er <'eiit to lio skins of females. These were skins taken fioni the ( 'nininaiMler
Island s(;als. As to skins taiu-n near Priiiilof Islands 1 counted tlie skins seized iu
the Itomi Ol»vH and '■-iind two-thirds of tiiein were skins of feniales. Theso wore
tak<!n as the log hook of the llona Ohm shows over S8 miles fioin Hliore,
Xow I would like to read — 1 will not ask the Court to turn to it —
from the argument of the Hritish ('ounsel, a short ])araj;rai)h iu con-
ned i 111 with Mr. (irebnit/ky's testimony.
Mr. Justice Harlan. — \\iiat year does this witness refer to?
Mr. CoUDERT. — Mr. Grebnit/.ky, l.S!»2.
The IM'EsiDKNT. — That was the year when poachiii};' went on the
other side of the line?
Mr. Cot'DERT. — Yes. Of course making it diHicult to poach on our
side wouhl have the eil'ect of iiicreasiii<>- poaching on the other side. It
increased what the eommissioners call, •' the energy of the business".
I believe scientilically no man lias des»*ribed wliat force or energy
meant, but we can explain what tliey mean here.
In the British Argument, at page 10!) (I say tliis for my learned
friends on the other side, so tliat they may Ibllow me) is this para-
graph,— this is the language of tiie P>ritish Counsel commenting on the
statement which 1 have just read: and 1 detlect from the course of my
reading because it is appropriate here to show how they explain, or
what comments they mak.) on, this testimony:
Jlr. (irobnitsky 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 exchnmation.
This gentleman has had long experience as superintendent of the C'onnuander
Isl:inds,an(l any statement made by him must be reetiived with res]it!et ; but we may
be itardoueil lor douliting such a statement as that here attiibiited to him, jiartieii-
larly as it is uusuiipoiled by any details of fact and is entirely iu opposition to other
evidenee.
Perhaps I ouglit to comment uj^on the words that have slipped from
the pen of Coiuisel when he sjmke of this statement being here attrib-
itted to Mr. Grebnitsky; when the United States produces an atlidavit,
a paper sworn to with Ids signature, either they have committed the
enormous crime of falsifying and forgery, or the ex])ression ought not
to have been used. But it was a slip of the pen perhaiis in copying.
398 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
Sir Charles Hussell.— Is it au aftidavit? I do not understand it
to be an affidavit.
Mr. CouDERT. — I do; and we state here that " he made the following
sworn statement to the United States Government."
Sir Charles IIu.ssell. — If you look at your own page 3G2, I do not
think you will find that that is so.
Mr. Couuert. — When Counsel says "it is unsupported by any details
of fact," I do not precisely know what it means.
Sir Charles Kussell. — I assure you it is not a sworn statement at
all. We nnike no counnent upon it. It is, of course, a statement to be
received with respect; but it is not sworn to.
Mr. CouDEUT. — Then I will read from page 307; ami it is best to refer
to the passage :
I, J. M. Crawford, Consul-general of tbo United States at St. I'eterwbnrgli, do
lierchy certify that Nicliola A. Ciri-bnit/.ki, military chief of tlu! Coiniiiaiider Islands,
ai>i)ean'd before mo Ihis day an-1 declared, under oath, that all the statciiicuts con-
tained in the foregoing article, etc'
I am glad that my learned friends on the other fiide when they spoke
of attribiifing had i. c read this, and evidently were misled by tliink-
ing of some other paper; or they would not have said it was nnsnp-
])oried by any details of fact because Mr. Grebnitsky gives these details
of counting two lotsof skins. Nothingcan be moredetailed than that;
and if I were not anxicms to save the time of the Trilninal, — it is only
my anxiety to save the time of this High Tribunal that ])revents my
reading the whole of it; but I W(mld recommend its perusal to the mem-
bers of the Conrt, and I think they will l)c lepaid.
Messrs. C. W. Martin and Sons exaniined these same skins, or a por-
tion of them, after they reached London: and found them to consist of
the following: Females, 83.7(5 ])er cent; nuiles, l.OO jter 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 Pribih)f Islands:
In .July, 1887, I captured the poaching schooner Angel IJoUi/ while she ■was hover-
ing about the islands. I exaniined the sealskins she had on board, and about 80 \wr
cent were skins of females. Jn 188(S or 188!', 1 exaniined something like 5, ()()() skins
at I'nalaska which liii<l bi!cn taken from scliooners engaged in pelagic sealing iu
Hehring >'ea, and at least 80 to 85 per cent wen; skins of I'cnialeH.
Then Mr. JNIalowansky, who is one of the men who has been cited by
both sides, or, at all events, commented upon by both sides, and whose
opj)ortunities for acijuiring knowledge were exceptional.
Ho Las resided on the Commander Islands nine years as ag(>nt of the lessees, and.
is well ac<iuainted with all matters pertaining to the sealing business.
lie says :
(Case of the U. S. Jpp., Vol. II, p. 197.)
In 18i)l the schooner ./. U. Lewis was caught near the islands by the Russian gun-
boat .tlviit and found to have 41(1 skms on board. I nnide a personal examination of
these skins, an<l found that from ilO to !(;"> per cent were those of female seals. I
called the attention of the Knglish Connnissioners, Sir (ieorge ISaden-rowell and
Dr. (i. M. Dawson, to this fact when they visited the islands in 18!U, showing them
the skins. J ojicned a few bunilles of the skins for their insjiection and ollered to
show all of them, lut they said that they \Yere satisfied without looking at anymore
than those already ojiened, 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 wik^ness, whoso testimony wo produce.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
(Case of the U. S. App., Vol. 11, p. 65.)
399
Mr. Morpan has resided at tlio Prihilof Island as iipcnt of tlifi lessees of the Gov-
erniiiPiit for ' great luimbor of years. He was tlien' lirst in 18()8 and 186!) and was
there contiiinously during each sealing senson from 1871 to 1887. In 1891 be went to
tiie Commander Islands and spent the selling season there.
This is what lift says:
I have personally inspected the skins taken npon the throe schooners Onward,
Carolina and Thornton, whieh skins taken in Hehring Sea were landed in Unalaska,
and were then personally inspected by me in the montli 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 sMns of females. I have also examined the skins taken by the
United .States revenue cutter Rush from one of the Nortii Pacific Islands, where they
had been deposited by what is known as a poaching s -hooner and taken to Unalaska,
■which numbered about 100 skins, and of that 100 skins at least 80 per cent were the
skins of female seals. I have also examined the skins sei/.ed from the .lames Ham-
ilton Lewis in the year 1891, by the Russian gun-boat Aletite, numbering 416, of
which at least 90 per cent were the skins of female seals.
Then Captaiu L.-G. Shepard, an Officer r!" the U. S. Revenue Marine,
who says:
{Ibid.,]). IS-i.)
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 tliree-fourths were the skins of females.
Of the females taken in the Pacific Ocean, and early in the season in Hehring 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 ])ui)s, which had been taken from their nu)thers. Of the females
taken in IJehring Sea nearly all are in milk, and 1 have seen the milk come from the
carcasses of dead fem.'iles lying on the decks oi sealing vessels which were more than
100 miles from the Pribiicf Islands.
{Ibid., p. 419.)
Next Commander Nelson of the United Stntes Navy seized the Briti-sli
schooner Mountain Chief Xov .sealiii<> in Belning Sea in 181)2 in vioUition
of the terms of tlie moduft vivendi. In tlie (iechiratiou of seizure he
states incidentally that tliere were found on her deck 7 seals which
had not yat been skinned, six of which were females.
The President. — Beloro you pass to another topic, will you allow
me to ask you tips? There is an allusion in some of the extracts that
you have been reading, to the action of the Itussian tleet or the Impe-
rial Russian Navy. Are you able to give us any information jibout
that action of the lnii)erial Russian Navy as to its limits and origin?
Mr. Cot DERT. — 1 do not think 1 have quite caught what the learned
President wants to know.
The President. — h\ the dei)osition of John Malowansky, and I
believe also in the deposition of ]Mr. Morgan, allusion is mside to sei-
zures by the Russiaii 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 ])oint 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, It is out of onr case, I acknowledge, but I would enquire
from you the same information on tiiat.
Mr. CouDERT. — Yes, I have some information on that, and with your
permission I will give it you later. I will proceetl with the regular line
of my sirgument, but I Mill look up the evidence that we have ou tbi^,
and i shall be litippy to give it you.
The President.— If you please.
400 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
Mr. CoimEUT. — I will now jrive the learned Court extremely valuable
evi<lence emanating from the best jmssible source, namely, tlie Ibitish
furriers, who are men of very high ehariuter, and it is not jtossible to
disparage tlieir testimony either as to its moral (juality or legal efleet.
If that does not establish the jjoint that we have undertaken to prove,
then it is notin-ovable, hut we have cumulated it and ])iled Pelion ui)on
Ossa so to say. We have the liritish testimony; there is an enormous
mass of it, and we have the admissions of our friends on the other side
which pra(!tieally adniit all we el dm, but we are not satistied with that;
we are unieasonable enough to ask for more, and we ask for the ])atience
of the Court while we give some imi)ortant British declarations on the
subje(;t.
1 want to read you a letter from Sir George Kaden-Powell i)ublished
in the London TimcH, November 30th, 1S8!). Sir George Baden Powell
was, as the Court remembers, one of the British Commissiouers. He
says:
As !i inattor of fact th« Cariiidian Sealers take very few, if any, seals close to the
islands. Their main catch is made far out at seii, and is almost entirely composed
of females.
This is the gentleman who signed the report recommending that there
be a closed zone twenty miles round our islands. Then t he extract from
Volume 3 to Case of Great Britain (page 1) liear-Admiral Sir Culme-
Seymour of the British Navy to Admiralty.
(Teloj^rapliic) Victoria. Ansast 24, 1886. Three P.ritiah Colnmbian seal schooners
seized by United Stiites Revenue cruizer Conriii liehriii}; Straits, seaward 70 miles
from off the land killinjc females and usinj; lire 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 despntcli
by telegra])h and had no word to waste says Just what would be approxi-
mately said to be the tjtct.
They are killing females witli a "shot gun" — it maybe they were
only DO 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 desi)atch of
Eear- Admiral Ilotham of the Britisli Navy to Admiralty.
[T5xtract.- Warspite, at Esquimau, Sept. 10, 1890.1
I have to request you will l)riug to the notice of the Lords Commissioners of the
Admiralty this letter witli reference to my telef;r-iui of the 8th instant.
I jiersoiially saw the masters of the soaiinsj-schovuers named below, and obtained
from them the inforuuition heroin reported:
Ca])tain C. Cox, schooner "Sapphire".
Captain Petit, schooner "Mary Taylor".
Captain Hackett, schooner "Annie Seymour".
Captain W. Cox, schooner "Triumph".
They uho mentioned that two-thirda of (heir catch coniisted of feviale nenh, but that
after the 1st .Inly, very few indeed were captured "in puj)", and that when sealinj^
outside the Meilirinm Sea, round the coast, on the way n|), (where tiiis year the
heaviiist catches were imide), they acknowledged that s(.'als " iiL pup" were freciuently
cai)tured.
Then there is the deposition or an extract from the deposition of
Edward Shields a sealer on board the Carolina seized in 188(J. This
testimony would seem to be worth consideration, for it is taken by
the British Government and olfered as testimony that ought to be
considered :
Roil by
to be
ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 401
(B. C. Jpp., Vol. Ill, U. S., N' 2, 1890, p. 8.)
I, Edward Shields, of Sookc District, Vancouver Island, a liiniter engaged on bonrd
the British schooner CaroHiia of 31.90 registered tonnage, do solemnly iind sincerely
declare that I left Victoria on hoard the aforesaid schooner on the 20th May 188o,
bound on a voyage to Kelning's Sea for the purpose of sealing. . . We sailed to
liehring Sea and coninienced sealing on the 15th June, and nt 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 "Corwiu" seized us we had 686 seals. During the
whole time we were criiiainff we were in the open sea, out of eight of any land. The seals
%ve obtained were chiefly females.
We are not voucbing for the veracity of this witne.s8 but he is oflerod
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? lie says we sailed to Bchring 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 ara sure.
Mr. CouDERT. — Now we have an e.vtract 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 fnr-seals, which have been
taken by schooners from San Francisco and Victoria. The greater number were
killed in Behring Sea and were nearly all cows or female seals. This enormous catch
with the increase which will take place when the vessels lifting up every year are
ready will, I am afraid soon deplete o'lr fur seal fishery, and it is a great pity such a
valuable industry could not in some way oe 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. oar 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
liehring Sea is inade 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
bu.«iness on the sea; and they saw (because they are intelligent gentle-
men) that this bu.siiiess was ruinous to the herd upon wliidi 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 saj', for they
could not deny the fiict, that over 00 per cent of the entire <'atch 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 de.ad.
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. I am bound to .say that
I had i)romi8ed him I would not read any more from him; but the
temptation is too much for me, and besides there was no consideration
B S, FT XII 26
402 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
■:||
for the promise; so, if lie will i)in'(lon me, I will read a brief extract
wbicli puts the cap upon it, — as you would say, Mr. President, "le
couroiinement de I'edilice". Mr. Tupper writes to the Sealeis' Associa-
tion. I refer to a letter of the l.ith of June at i)age 195, a id also at
pages 90 and 91. Let me preface the reading of this brief extract with
the remark that it is doubly im])ortant not only on the subject I am
reading now, but on tlie question of damages; and Ave cannot help
thiniiing it is a little ungracious on the part of my friends on ihe other
side to ask us to i)ay damages to them, after we have surrendered our
business to tlieir sealers and they have largely ]nottted by the circum-
stance. It is evident that they must have made a large profit out of
tlie modun virendi, partly because they did not observe it and, there-
fore, it did uot liurt them, and jiartly because we did not put any skins
on tlie market and they had the full control of it, and partly because
they interce])ted the seals before they entered the Bering Sea which
had an appearance of legality; their business was very jirosperous, in
fact they never made so much money as appears from the Oase; and
wlien they ask us to pay damages in addition, we think it is rather an
ungracious demand.
That is on the (juestion of damages; but, on the question of pelagic
sealing, the letter of Mr. Tupper is important. This letter is addressed
to the iSealers' Association.
Gentlemen : Revcrtiu;^ to my letter to you of the 13tli June on the subject of your
eomniuniciitiou of the 5tli of tlmt month, on behalf of the Sealers' Association of Vic-
toria, rcnionstradnffaj^ainst the jiroposeilHjodus vivendi in Hehrinj^'s Sea, 1 have now
the honour to inform you that Her Majesty's Government is of oi)inion that the total
cessation of sealin;; in liehrinjf's Sea will {jfrcatly enhance the value of the produce
of the coast fishery, and does not antifi|>ate that British sealers will suffer to any
great extent by exclusion from IJehring'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 (iovernment
was absolutely right; and the result has shown it, and the t.ables that
I have read demonstrate that Her Majesty's Government exercised a
great deal of foresight, just the foresiglit 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 Avitnesses at Victoria was taken.
Sir CiiARivES KussELL. — You mentioned another page 105.
Mr. CouDEiiT. — I said that that was the crown of the edifice; but, if
I have time, I will read anything you desire nie to read.
As 1 have sai<l, 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 LTiiited States. We, as I say, examined 29 of these
witnesses. How many were cross-examined by our friends on the other
side, Ave do not know ; but we do know that the cross examination of
ten of these Avitnesses is produced in the case. Why the others Avere
not cross-examined, or Avhy the cross-examination, if taken, Avas not
produced, we can only conjecture.
The first of them is Peter Anderson, a boat-steerer. He had sailed in the last thre,9
years ojithe Black Diamond, Ariel and IJinbriua, all British schoouers. He says:
'l
»
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 403
of
; but, if
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 Beliring Sea. A few young male seals
are taken in the North Pacitic Ocean from two to tlirec years old. Have taken females
that were full of milk 60 miles from the Fribilof Islands.
And Bernard Bleiduer was out in 1887 and 1889. He scaled in the
North Puciflc.
Most all were females and had pups in them. 1 think fully two-thirds of all we
caught wore females and a few were bulls.
Then Niels Bonde, of Victoria, Sealer, haKS been for four years in this
business.
The President. — We are struck by the appearance of Scandinavian
names, here.
Mr. CouDEBT. — Yes. Wherever anything is done on the high seas,
you will be sure to find their names. They found their way to America
before Columbus.
The President. — Yes, the successors of the ancient Vikings, no
doubt; but I suppose these people did their business under the British
or American flags? It is not a case of the Scandinavian flag appearing
on these scenes?
Mr. CouDERT. — No; there was no Scandinavian flag.
NiKi,s Bonde, of Victoria, Sealer, has been out fonr years on sealing schooners
from V^ictoria, namely from 1887 to 1890 iuclusive. He says:
The seals caught along the coast after the tirstof April was mostly pregnant females
and those caught in Bohring 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 crossexamiued, and he says this:
That on each of said vessels (namely the fnir ho had served on) I had more or less
to do with skinning the seals, and would say that about 60 prr cent on the coast were
females and about 50 per cent inBehring Sea. I distinguish the male skin from the
female by the absence of teats.
Then Thomas Brown, of Victoria, Sealer, says of 1889:
Most all the seals that we shot and secured were females and had young pups in
them and we would sometimes skin them.
He says of 1890:
We were sealing about three 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 wo caught were
pregnant females.
So that the Admiral was literally right when he said they were killing
females w ith shot-guns.
Then Chulst Clau.sen, of Victoria, M.aster 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-
ring 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 ;jet 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 stneral days. This is a frequent occurrence. It is my experience that fully
85 per cent of the seals I took in Behring Sea were females that had given birth to
tlieir pups, and their teats would be full of milk. I have caught seals of this kind
from 100 to 150 miloH uwuy from the I'ribiluf Islands.
404 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
' '.'D'
Then Gukkni.eaf, a Master Mariner, of Victoria, says:
Since 18«2 I have been interested in the scaling business, and Idin well acqnafnted
■with it and the men engaged in it and the methods they eniiiloy. I am acipiainted
■with the liunters and masters who sail from this port, and bo;ir(l all incoming and
outgoing vessels of that class. These me. all acknowledge that nearly all the seals
taken off the Pacific Coast are females, a..d that they are nearly all with young.
I have also learned by conversation with Kehring Sea hnnters that they kill seal
cows 20 to 200 miles from the breeding gronnds and that these cows had recently
given birth to young. I have observed in the skins that the size of the teats show-
either an advanced state of pregnancy or of recent delivery of young.
The JJritish (joverimieiit has uiitde an attack upon (iieenleaf by
endeavoring to connect liim with snmgfylinjj operations. I do not
know whether lie wonhl object to beinj;- connected with sning-gling
o|)eratioiKs, or if any of tlieni wouhl. It is so coninuni, 1 understand,
tliere that it has abnost reached the point of beinj? lej^itimate. As to
tlie moral difference, which is the better and whi(!li is the worse, killing
and ripping up gravid females, or smuggling a little whisky into a
desolate jdace to cheer up the natives, 1 do not know whicli is the
worst, but fortunately it is not my task to enlighten the Court on that.
Then Ainufu (iRiri'ix a scaler.
We went sealing in 181I0.
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 fenuiles with puj), the balance were young seals, both nnil., .md female. We
entered the Behring Sea on July 31fit through Unimak Pas.-i and captured between
900 an' 1,000 seals therein, most of which were females in milk.
Of the i'ollowiug year which is 1891 he says:
We captured between 900 and 1,000 on the coast, most all of which were females
with pnj)s. We entered the sea .July 12th through Unimak Pass and iai>tured about
800 seals in those waters, abont 90 per cent of which wore females in milk . . . and we
captnred fenuiles 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 witliin 20 miles of the Island. I think
there is only one excei)tion to that, where it is poken of as 15, but us
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 coninicnced 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 dnring the season; almost all of them were progiiiint females: out of a hun-
dred seals taken about 90 per cent would be females with j'ouiig jiups in them; I
can't tell a male from a female while in the water at a distance. On an average, I
think the hunters will save about one out of tlirei; that they kill.
This is on the question of waste by missing and wounding.
Bnt they wound many more that escape and die afterwards. We entered the
Behring Seaabont the 1st of June, and caught about200 seals in those waters. They
were mostly mothers that had given birth to their young and were around the tish-
ing banks feeding. The hunters used shotguns and rilles. In the Behring Sea we
killed both male and female, but I do not know the proportion of cue to the other.
Then Jamks Hayward, of Victoria, Sealer.
He went out s<'aling in 1887, 1888, 1890 and 1801. 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 out into the sea to feed. Have caught them 150
miles oft" 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 (Icean are cows with
pup, and the majority of seals taken in Behring Sea are cows with milk. . . 1 have
taken female seals eighty miles off the Pribilof Islands that were full of milk.
li
ji'
ORAL ARGUMENT OP FREDKRICK R. COUDERT, ESQ. 405
,
Then Joshua Strickland, of Victoria, Sealer.
lie liiiH been in the Heuliug buHiness two years on the Britinh schooner Umbrina.
He Miiys :
Most of tliu BCiilH are females with pup. . . Have killed cow seaia that were full
of milk over 4U miles from the Pribilof Islands.
Then Ai.fuko Daudkan, of Victoria, Sealer.
He went sealing in 1890.
We canglit over ytH.) skins before entering the sea and onr whole catch 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 ha<l eight such
skins myself. Four out of five if caught in May or June, would be i\lis'e when we
cut theiii out of the mothers. One «>f thiin we kept for pretty near three weeks
alive on deck by i'eeding it on conden.sed milk. One of the men linally killed it
because it cried so pitifully. We only got three seals with i>uj)s in them in the Heh-
ring Sea. Most all of them were females that had given birth to their young on the
islands, antl the milk would run out of tlie teats on the deck when we would skin
them. We caught female seals in milk more than 100 miles olf the Pribilof Islands.
This witness had the distinction of being crossexaniincd by tlie
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 Kussell. — 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 E. B. Marvin during the time I was aboard of her
were female seals, and a large portion of those female seals, were barren.
Sir Charles
Mr. CouDERT. — Yes
would have read it:
x«( \j ^{Si^LL*
That is the point.
I beg your pardon. If
I had observed it I
sows with
1 have
ilk.
Major Williams' clerk or secretary gave me $2 for the replies I gave to questions
asked me by the M.ajor 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 wa.s bought he was
bought clieap but i)i"obably it was as much as he is worth. Out of
justice to Major Williams it ought to bo said that there is notliing
unufsual in paying a man a fee lor 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, lie 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 MouRis Moss, Furrier and Vice-President of the Scalers Association of
Victoria, who has bought from ton to twenty thousand sealskins per annum.
I believe the majority of seals captured by white hunters in Beliring 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. JonxsoN, of Victoria, Sealer and Sailing Master, who has spent six years
of his life stealing, and been captain of four ditVerent schooners:
A large majority of the seal taken on the coast are cows with pui)s. A few young
males are taken, the ages ranging from one to live years. Once in a while an old
bull is takeu in the North Paoitic Ocean. I use uo diseriminatio] . in killing seals.
406 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
but kill everything that coinos near the boat in the shapi^ of a seal. . . The
majority of the seals killed in UelirinK Sea are females. 1 liiivo killed female seals
75 miles from the Islands that were full of milk.
Then ViCTOii Jacobsox. He is a Hritish subject and has been en^ja^ed for 11
years in sealing, 10 years as master. He is apjiarently a n'|)ut.'il)ie man as lie appears
for the Hritinh (iovernment on the question of damages. They have produced him
and be may presumably be relied u])on. He says:
The female seals go through the passes from the Pacific Ocean into Hehring Sea
between .hine 25th and .Inly 15th. Females killed previous to tliis time I found
with pap but none with pups after that latter date. I have killed femiile seals with
milk 20U miles from the Pribilotf Islands, I think of the seals taken bj' me that
three in five are females, and nearly all with pup.
And in connexion with this he is crosscxiiniiiied <ind he stcates:
My experience has been that about three out of live seals taken on the coast are
females, and about the same in Uehriug Sea.
This witness has nothing further to say iu his cross-examination on the subject of
females.
Then we have the testimony of Edwim P. Pouteu. 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 ouo 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 unliorn
pup is quite large, and we frei|ueutly 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 conlensed milk. The seals we captured iu Uehriug 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 he full of milk when 1 skinned them, and I have seen them
killed from 20 to 100 miles from the seal islands.
Then Charles Petekskn, of Victoria, Sealer.
He went out sealiu"; in 1886, 87, 90, and 1891. As to 1887 he says :
We entered the BeTiring Sea about the 15th of August through the Unimak Pa.ss
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 hud
left their young. . . I have seen the deck almost flooded with milk while we were
skinning the seals. . . Kinety per cent of all the seals we captured iu 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 tlie Victoria testimony is concerned is the
testimony of Mr. McManus. Ho is fin intelligent man and a journalist.
He spent the summer of 189L on the schooner Otto which hunted lor
nine days in Behring Sea. Following are some extracts from the journal
he kept.
Thiv:; 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 Jor 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: P'irst boat, Iseal; seccmd boat, none; Indian canoe, 10
seals; total, 11 seals; 8 cows iu 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.
Mi-j
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 407
Sunrtny, 30 Au};iist. Rt'snlt of hiiut: First boat, two soalH; st^ft-ltoiit, oiio ; Iiuli.m
canoe 8()ven; total, ten Reals, seven of which wuru cows in milk. S«-M>ral,n8 nsnul,
reported wonudud an<l lost by the bouts. Tlio great superiority of the Indian speiir
evident.
I want to say, in connection with tliia jjcntlerunn, that his testimony
is contlrmed by Mr. King Hall, a son of the Hritisii Admiral of that
name, Sir William King llall, who was on l)oar<l as a corrosjtondent.
I have not taken it oat, it will be found in the United States Case,
volume 2, pages 332 to 33i, 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 Kei>ort, express as their viesvs
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 hniitprs along the coast, fnr-scals of both
sexes are kille<l, and, indie<l, it wonhl bo unreasonable, nndor the cin innHtanccs, to
expect that a distinction slionld be made in this respect, any mure than that the amjler
should discriminate between the sexes of the fish he may hook.
That I have read before. Then GIO.
The accnsation 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 huntinij
as distinguished from slaughter, and in which the animal has what may be described
us a fair sporting chance for its life.
iThe Tribunal then adjourned for a short time.]
Dhe President. — Mr. Coudert, we {ire ready to hear you.
Mr. Coudert. — 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, o'ld
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 justicte to tliat by any com-
ment, and I leave it to the Tribunal without criticism.
I proceed now with what we call the Americian 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 n.ations 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. S. 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 181)1, and 18112.
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 sutticiently large inimber 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 211).
408 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
Now tliis is his lan^aage, on page 213:
Siiici) leaviii^f San Francisco on Miirch 9, the Corrcin has Hteiinird 16,200 miles, and
8,7i:i niiloH sincu tint dutit of my reportin;; tor duty ns part of the ISciiring Nea lleet.
Of this distance 5,5(17 milcH wore stoamed in Hciirinu Sea I ttnd
in H^'XTal, as ono of tho rosnlts of my investigationH, tliat nioni than two-thirds of
thu Ht-al taken are cows now haviug voun^ 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,
oxtt'pi in the caseof yonnj; pups and old bulls; tliat even under the most favourable
ooixlitions a largo ju'rcentage is lost by sinking or woundin;;, and that by reason of
tho tameness of tho nursing cows, which form the larger jtart of tho seals seen,
pelagic hunting in Heluing Sea is ])eculiarly tlestructive aiul unless stopped will
wholly extcrmiuato the already greatly depleted herds.
I do not believe that it is possible to indicate any /.onal limit in Rehring Sea
beyond which p(dagic sealing could be carried on, and at the same time ])reserve the
seals from com|)lete annihilation. Further, I wish to renew a statement contaiiitid
in a former report made to the hoiuiurable Secretary of the Treasury, that unless
supplemented with ]irotectioii in the Pacitic Ocean, no amount of protection in lieh-
riug Sea will preserve the herds.
Ca])tain Hooper's testimony is commented on in the argument of our
friends on the other side, on pages 108-1), ajul tlds is what they say :
The United States revenue Cutter Corwin Captain Hooper, was occupied for
twenty-six days in hunting seals during the summer ol' 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 liuuters. Of this number twenty-nine are
8tat(!d to have been females, a proportion which does not ditter very largely from
that given by several of the i)elagic 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 aclcnowledgment 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 tltat some
70 per cent or upwards were females.
ToWNSKNi), Naturalist, attached to tho U. S. Revenue Cutter "Corwiu"
(Counter case of the U. S., pp. 392, 394.)
CHAitr.F.s H.
in 1892.
I
Ap already stated above, I was attached to the steamer Corwin during the past
summer, and I made all the examinations of the stoniitchs 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 oxauiined 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 nules from the islands. The photographs exhibit the mamm.'iry glands
and convey a good idea of the considerable size of these glands, which in all cases
were tilled with milk. The infen-nce is unavoidable thfit the pup is a voracious
feeder, and this inference is in keeping with the observations I have made on the
rockeries where I have repeatedly seen pnps suckle for half an hour at a time. The
milk glands are (juite thick and completely charged with milk. The photographs
(opposite p. 394) especially the first one, exiiibit the milk streaming from the glands
on to the deck.
Annexed to the report of Captain Hooper is a table giving tho 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. Siikpard, U. S. Revenue Marino.
(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 commantl of the revenue steamer Itiish, 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 OP FRKDERICK R. COUDERT, ESQ. 409
make n i»iirt of tins nUidavit a tabic, (markt!(l A,) Riving the uanios of tlio vonsoIh
Hoi/ed by mo in KclirinR >Soa wliiiit violating tlio law uf tliu United HtatuH in relation
to the taking of fiir-buaring aninialH.
I examined tlioHkins taken from sealing vesHels noised in 18M7!iii<l 1K89, over 12,000
Bkin8 and of tliese at least two-thirds or three-fonrtlm were the skins of females.
Of the females taken in the Pacilic Ocean, and early in the season in liehring Sea,
nearly all are heavy with young, and the death of the female necessarily causes (lie
death of the unborn \mit 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 iu Behring Sea nearly all are in milk, and 1 have seen the milk come from the
carcasses of dead females lying on i\w decks of sealing vessels which were more
than 100 miles from the I'ribilof Islands. From this fact, and from the further fact
that I have seen seals in the water over IHO miles from the islands during the sum-
mer, I am convinced that the femali-, 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 » very old bull, when his h'v/a'. distinguishes him. Therefore open sea sealing is
entirely indiscriminate as to sex or ago.
The next is
Captain Bkyant, U. S. Treasury Agent.
{Quoted in U. S. Counter Case, p. 84.)
Writing of the year 1870 he states:
Formerly iu March and April the natives of Puget Sound took large numbers of
pregnant females.
The next is
H. H. McIntyrk, Special Agent of the U. S. Treasury Department.
(Counter Case of the U. S., p. 84.)
It may also be stated in support of this sujtiiosition that nearly all the five tlion-
sand seals annually <'anglit on the British Columbian coast are ]iregnant 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 Seuate Ex. Doc. No. '6'2, 41st Cong, second Sess., p. 35.)
We then have the testimony of :
Captain Daijikl McLkan.
(Case of U. S., Appendix, vol. II, p. 443.)
He is a Nova Scoti.an 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: "Ca[>t. Donald (Daniel) McLean, one of our most
successful sealing captains, and one of the lirst to enter into the l)usincs8 of tracking
seals from California to Behring Sea", etc And again : " Capt. Donald McLean
and his brother are expert .sealers." (See reports of Department of Fisheries of
Canada, 1886, p. 247.)
Capt. McLean has been engaged iu 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 yoii, 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 1(K) 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 cowa iu the Behring
Seat— A. Yes, Sir.
410 ORAL ARfJUMENT OF FHKDERICK R. COIDKRT, E8Q.
Cui)t. Aloximdor McLcnn, Imttlior of tlio iiliovo witiifsM, wlio \h alio tirinod an
expert Heuler by Mr. Muwiit, beurM out fully tlio fori<;oiiij;. {Case U. iS., Ajj^eudii:,
vol. II, p. CW.)
The next is
Jamkh KiKiiNAN, of San Friiii(l8co, HOftlinjj ''ivptuiii.
(Cane of the U. S., Appendix, vol. 11, p. ! 10.)
Tie has been «'n>{iiKc(l in Rcdlin^ for many ycaiH Niiice 1H1,'{, his early experience
being in South Anu-rica wlujro tiio rookcri(!s have now to a gn-at extent been
<leHtroye«l. He made his iirsf sraliiig voyage in the North Pacilic in 18(18 and has, In
more reeont years, been in Hehring .St-a.
My experience has been that the sex of the seals usually killed by hunters
eniph)yed on vessels under my command, both in the ocean anil Ht-hring Hea, were
c«>ws. I should say that not less than HO per fcut of those ciiught each year Were
of tliat sex. I have observeil that those killed in the North I'acitie were mostly
females carrying their young, and were generally ciinH;ht while asleep on the water,
while those taken in Hehring .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
you.ig and become pregnaiit again, hence when she has been slain, it means the loss
of three, as the young pnj) will un([ue8tionably die for lack of sustenance.
Then we have
Captain Ciiarlks Ll'tjkns, 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
BehringSea? — 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
Britinh Counter Cane, Appendix, vol. II, p. 121.) He there states:
Of my catch along the coast going north four-tiiths would be females, and I think
about lour-iifths 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 I'lO miles from the islands. About one-lifth
of the cows taken are barren.
Then wo have the testimony of FUANWi. JIoukau, of San Francisco, sealer.
{Case of the U, x. Jppcndix, vol. II, 467.)
Q. Have you been engaged in catching seals in the Pacific and Behring Sea. anil
for how long? — A. For iive or six years 1 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 t.aken were cowsf — A. I should judge
about 90 per cent.
Q. What percentage of the cows yon have taken were with pup? — A. About 7.H
per cent were with pup.
This witness was subsequently cross-examined by the British Government. (See
British Counter Case Appendix, vol. II, p. 135.) He says:
We get more females than males. 1 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 j)ercentage would apply to cows in milk, though I did not pny
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 Wiiitk, of San Francisco, sealing captain.
I
ORAL AROUMKNT OF FURDKUICK R. COUDERT, ESQ. 411
i
(Case of the U, S., Appenriu, vol, II, p. I8i>.)
1T() is n iiijin wlio Iiiih liail larjjn fxixTiiMico. Ih* (Ii^tiiilH it liiit to sftvo timo, I will
not roatl it. I n» to tlio liottoiii of tiiu puKc:
III IHH7 1 wiiH iiiasttT lit' tliii HciiooiiiT l.otlie Ftiirfniil, naiWui^ from . Sun KritiiciHCoon
or alxiiit the ITtli day of March, uikI woiki'il iiorliiward to tlic Hrlniii}; Si;a, iiiiil i-itp-
tiirt'd xH'.i HoiiJH. I tlifii eiiteri'd tho HolirliiK Sea iiliout tlit> titii of .lui.v, <TiiiHiii)>-
tliertt until the 2i)th day of Aii^HMt, nnd took 2,517 Hualti iiioru, tlit; wlioluoat<^h huiiijr
3,4()0 for the year.
I skip a lew lines and rea<l :
In my captiiri-H otf tlio coaMt ln'tweoii licre nnd Sitkii 90 per '•ont of my rutrli were
feninlfH, liutotf the coaxtof t'liimack I'iihn their waH ii Honiewhiit Miiiuller pererittitue
uf femaleH, niul nearly all the fenialcH wore cowh heavy witli pup, tiiid, in Home
inHtaiiceH, the period of f^cHtatioii wuh ho near at hand that 1 have fre(|uently taken
the live pup from the mothcr'H woiiih. . .
I never jiaid any particular att»!uti')ii to the exart number of or proportion of each
Hex killed in the Heuriii^ Sea, but I do know that the larger ])ortion of them were
females, and were mothciH k>^'>i>>! niilk. I have never hunted within 15 milea of the
I'ribilolf iHl'indH; but I have olten kil'ed Heals in milk at dintaneeH of not leHH than
ICX) to 2(K)inileH from thcHe inlandH. Krom my knowliMlj^e and experience in the buni-
iiess it is my conviction that within tin last few years, nince the Healers have becomo
so iiunieroiis in the I'acilic and HoliriiiK tSea, that not more than one out of three is
secured. Our purpose and practice was to take all the Heals we could get, regardless
of their age or sex, without any diHcriminati'-n whatever.
These few lines following ought to have been printed in difi'erent
typo, this ib the conclusion:
The foregoing are Hani])les of the many sworn declarationn of men, having practi-
cal experience in, or knowledge of, pelagic; Healing, which declarationn, to the number
of over 150, will be found at pp. 429 to 447 and 451 to 460 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 aonu'times call the "Collated
Testimony".
Now this High Tribunal has heard all the evidence which it is possi-
ble to furnish upon this subject — the evidettce of Furriers, Sorters of
Furs, Pelagic Sealers, Officers of the United States Government, Olii-
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 Unitetl States is, that when we insi-st that they are practi-
cally all female seals — that they run up to 85, 90, or as M. Grebnitzky
says, 90 per cent — that we exaggerate; but it really is practically con-
ceded, and possibly may be in terms admitted, that the proportioii 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 couferned, it makes very little diflerence 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 iiulges or the mistakes of juries. You
may perhaps violate the commandments of God with the hope that lie
in His mercy will forgive you; but nature is inexorable; she moves
with a lame toot 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. COUDKRT, ESQ.
Now with reyanl to cat(5liing seals and where tlioy are generally
caught in Bering iSea. This bears rather upon the <iuestion to which
i called the atcention of the Court a few days ago — the question of
Kegulations; and this High Tribunal may remember that I stated that
any discussion was irrelevant on the question of Kegulations, except
in so far as the facets connected with the Tribilof Islands and what was
done there might have some bearing on the general facts of the Case.
1 think the High Tribunal is entitled to know all the facts in the Case,
to know all about the seals, to know what is done on our islands, as
well as what is done on the high seas; but as I stated then, any liegu-
lation that is made must be exclusive of our territory, because, by the*
very terms of the Treaty, no Kegulation att'ecting our jurisdiction or
the jurisdiction of Great Britain can be promulgated,
A very few brief extracts further. Captain William I'etit, Master of
the British schooner "Mischief-, says this (and this is from the Report
of the British Commissioners, page 221):
Were you in Uehiiiig's Soa last year, and were yon ordered out? — (A) Was ordered
out by the United States ship Corwin. (t^) Jiel'ore being ordered out wh.at was your
usual fishing distance from laud? — (A) 60 to 100 miles. (Q) You found seals all
along that di.stanco from land? — (A.) Yes, in large numbers.
And let mo 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 i>rotect pelagic sealing
and not the seal, I am founded upon the rock of the evidence that they
themselves (juote.
Then
Captain W^irxiASi Cox, M.ister of the British schooner Sapithire.
Q. What has been the general dlBlanco yon have sealed — the distance from the
seal islands? — A. From 100 to 110 miles. I was within 80 miles of them last year;
that was the nearest I was to them.
Q. Your prinei])al 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
Captai'i \v. E. Bakkr, Master of the British schooner C. H. Tuppei-; this is also
from the Ileport of lirithh Commissioners, p;ige 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 itO miles from land. The usnai distance is about 68 miles.
Sometimes wo are inside of that, sometimes outside of it.
Now Andrew Laing has testified. I do not quote it. It will be found
at page 2.'>2.
In the Briiish Case, Appendix, vol. III, (U.S. No. 2, 1890). p,U3, wo find a Report
of a Comniittt'o of the Privy Coiuicil for Canada, stating the positions of six of the
sealing schooners which were seized in 1^87. 'I'hcy are a« I'oUows:
1. The W. J', Saywahd, .Inly !', at 58 miles from nearest land.
2. The GiiA'i;, .luly 17, at 'J2 miles from n"M- ai land.
3. The Anna Hi'.ck, .July 2, at 66 miles from nearest land.
4. The Doi.riiiN, .Inly 12, at 42 miles from nearest land.
5. The AM'iiKi> Adams, Atigust 6, at 62 miles from nearest land.
t). The Ada, August 2"), al)out 15 miles northward from Ounnlaska Island.
The foregoing declarations and lieport 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 I'ribilof Island.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 413
Mr. Carter. — Tlie.se were all in Behring Sen?
Mr. CouDERT. — Yes. 1 will now ask Mr. Lausiiig to point out Una-
la.«ka Island.
[Mr. Lansing tlien did so.]
Mr. Phelps. — That is, 150 miles from the Pribilof Islands.
Mr. CouDERT. — Directly iu tUe course of migration. As I have said
before, Captain William Cox was 100 miles to the wt st.
The President of the Tribunal will remember that some question was
raised the other day as to the number of iseals taken by pelagic sealers.
JJaptain Cox is the gentleman who took 1,000 in i days, and this testi-
mony, the learned Tribunal will observe, also corroborates the charges
thatwo 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 olf, you will notice that all these are
in the zone of the Pribilof Islands, and are in that i)articular group.
Mr. Justice IIaulan. — The Comnuiiider Islands are 800 miles to the
West, you say.
Mr. CouDERT. — Yes.
Sir Charles Kussell. — I did not know that.
Mr. CouDERT. — Very nearly, in round figures, 800 miles.
Now with regard to the questi(m of dead pui)s the learned Tribunal
will find that considerable s])ace 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 h)ss, aiul that
loss is coincident with the death of the mother, I do not think we need
go into any careful examination or balancing of testimony. If we find
a man with a bullet through his brain lying on the ground, even in the
hot sun of July, we assume that he was killed by tliat 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 inlaiids, that they are emaci-
ated, and when they are opened there is notliing in their stomachs, or
nothing but a very little milk; and you are shown at the same time
that the motliers upon which they dei)eiid for sustenance have been
killed — uviiess soii.ething (.'rai be shown that prima facie appears to
account for the d- .ith <mtside these natural causes, we nuist assume
that they died of starvation, and that is what the testimony undoubt-
edly shows.
Therefore, I will not dwell ui>ou that. I prefer to let the matter
stand as it is, and hear what arguments our frieiuls on the other side
may have to state on the subject. We simjdy say, the natural cause of
death is the death of the mother, and if it were true, as it is not, that
a nmther .""uld suckle nu)re t'lan her own, and vonld take a waif when
she found it, from maternal instinct and cliarity, tiien the difiiculty
would be oi ly slightly minimized, because the supi)ly of food would not
be sutficient to go around and nourish all tl»e young.
I will here interrupt the regular comse of my argument to answer a
question of the learned President of the Tribunal with regard to the
action of Bussia in seizing pelagic sealers. In the Case and (counter
Case of the United States and Appendix on pages liOl, ii(L', L'O.'j ami 204
is all the infiu'ination that we have ujiou .'he subject. It is iiiiperfei^t;
it is by no means as full as the Tribunal might like to have it; but the
learned Arbitrr or*^ will understand that that is not a subj«'ct upon
which we can have any official evidence, and we must let the evidence
such us has appeared in the Case speak for itself.
414 ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ.
i'li
m
On the first page I have pointed out, N" 201, there is an extract from
the Victoria News of Aujj^ust 31st, 1891. It is ratlier hysterical in its
general tone and perhaps 1 ought not to read it in a solemn judicial pro-
ceeding. It talks about '"Itussian Piraf'y", "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 liussia; 1 will pass that and take the next page L'()2.
The London kStandard of September the 10th states the fact in more
moderate language:
Tlio Minister of Marine is preparing a case to submit to the British Government*
relative to the seizure of Canadiau sealers by the Russian cruisers oil" Copper Islanil.
He says the seizures were made not in Behriuf? Sea but iu the North Pacific, auil
that they are most glaring violations of the treaty between Russia and Great Britain
iu 1888.
That is a misprint there. It is not 1888. It is probably 1858 or 1859.
Mr. Justi(!e Haklan.— There was a treaty in 1858.
Mr. CouL»KRT.— Tlien it is probably 1858. We aUo have an extract
from the London Financial Times of September 15, 1892, live days after
this. It is written from Victoria, British Columbia, on the 13th Scn-
tember but it is published in the London paper on tlie 15th:
A comparison of the statements made by the captain of the Russian cruiser which
seized a uuuiber of Canadian sealers iu the Northern Pacific and the regular charts
prepared by the aj^cnts of the marine department shows that the Schooner JViltie
Mciioxvan was 42 1/2 miles from the nt-ircst land when seized. The Rosie Oheii also
appears to have been 38 miles and the Ariel 30 miles out at sea. The sealer Agnes
Macdouald arrived here to-day and reports that when 20 or 30 miles from Copper
Island she put out her boats, which wire, however, soon driven in by the Russians.
The yancouver Uelle and other vessels have been seized all tliey contained being con-
fiscated. The Russians are said to have dclared that they would sfize the British
schooners wherever they found them, no niatter what distance from the shore. The
sealer IJbbie will probably make a trip to the southern Pacilic.
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 October 8th, 1892, and published in the London
Times of November 11th, 1892.
Mr. Justice Harlan. — That is a letter to the Collector.
Mr. ConDERT. — "From the Collector" it is headed on the top of the
page, but I think that must be an error, 1 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 Zuhiaka and the Russian Fur Company's steamer Kotik.
Schooner }yillui MvGotcan, latitude 50^, 50' N., longitude 167^, 50' E., a distance of
42 1/2 miles from Copper Island the nearest land.
Schooner lioaie Ohcn, latitude 34^\ 21' N. ; longitude 165", 40 E., a distance of 38
miles froiu Behring Island the nearest land.
Schooner Ariel, latitude 54^, 10' N., longitude 167'^, 40' E., a distance of 30 miles
from Coi)per Island, the nearest laud.
Yours respectfully.
Then finally, and that is all I have to read on t>>e subject, it may be
interesting to the Tribunal to hear a paragraph from page 201 on this
subject.
The said latitude 54*^ 18' north, longitude 167° 19' east, is, by correct observp+ion
measured by me, on the United States Coast Survey Chart, N" !)()0, more than 50
miles from Copper or Behring Islands on the high seas, aiul not in Hussian waters;
when ut said time, and iu the latitude and longitude above men' 'led, on lu; l,f)th
day of July, A. I). 18!)2, as af(U'esai(l, and not being at the time i in ting t>r fi:>iiing,
and not having at any lime tisl.efl or hunted seals in Russian wit; rs, 'out b ;n<; at
said time on my course for fiie Ktirile Islands, as aforesaid, il.L- aid schei '.Li- vas
boarded by an ollicer from the Kussian w;ir cruiser Znhiaka, wbi h .saiil »siir cruiser
Xahiaka was at all times herein nu'Utioued, a regularly commis.-iioned war cruiser
belonging to the Russian (<overuuieut, armed for oU'eusive and defuuaive woifare, aad
.
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 41 5
.
actiii}? under tlie authority and by the directions of the siiid RiiRsian Government:
and I was by said Hnssiau officer ordered to come on board of said cruiser with all the
schooner's papers; I accordingly went on board, and the captain of said cruiser,
after examining the schooners papers, arrested me, and (hen 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
tlien and tliere seized said schooner V. II. JVIiite, and towed it to Michelovsly Bay,
lichring 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 signetl said paper, and I only signed said luiper under protest in cou-
sei|uence of said threat and the duress exercised by said Capta'" of said cruiser.
The Russian GovernnienD seized said schooner C. H. White, as hereinbefore set forth,
but I do not know what disposition was made of said schooner, but I am advised and
believe and therelore allege, that said schooner was repainted and refitted and used
by said Russian Government, and is now in its possession, and by it used.
That is all the testimony that we have or this subject.
Tlie President. — There was a protest of the captain.
Mr. CouDERT. — A dejjosition in which he filed a claim against *he
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 a«!tion, as far as we know, wai^ taken.
Tlie 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 simihirity between the actions of the two Govern-
ments in the two seizures, and our Government would have takeu
action certainly if it had not considered that the proceeding Avas proper
and in accordance Avith its own view of right.
Sir Charles Russell. — The conclusion of that is the protest of the
enptain.
Mr. Coudert. — Yes, it is filed in the State Department.
Sir Charles Russell. — It says lie duly noted the i)rote8t.
Mr. Coudert. — What is the point? Do you wish me to read auy-
tiiing more? I will if you desire it.
'lir Charles Russell. — No.
Mr. Justice Harlan. — It is a regular marine protest.
Mr. Coudert. — There is one point to which I call the attention of
the High Tribunal and that is the number of seals lost by wounding,
or by killing and losing. In connection with that 1 would briefly refer
to the British Commissioners' Report as giving the view most favor-
able to the Government of her Majesty, section 004.
Seals thns mot with upon the sea surface are roughly classed by the hunters as
" sleepers" and "travellers" and the former are of conise, the most easily approached.
Whct'ter in canoes or boats, paddles are employed in preference to oars as they enable
a iiiiire noiseless approach to the seals. Wlien a sea! is seen, the boat or canoe is
(jiiictly but swiftly impelled toward it till the hunter believes that he has arrived
witliiu sure range wlitui he (ires.
If killed, as ha]ipens in the majority of cases, especially now that the shut-gnn
bus superseded the ritle, the seal nuiy 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 carciuie which docs not diller much in spccilic gravity from the water, ia
already partly submerged, it is at once secured with a 1.5 loot gaff, and hauletl ua
board. If the seal siiould liappeu to be merely badly wounded, it either struggles
upon the surface until gatl'ed, or, if retaining stren'jL;th to do so, dives. If quite
lightly wounded, as of coursti happens in some cases, it may eventually escape; but
if severely wounded it is probably killed at the next rise after a biiort submertiion.
416 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
These are some of the chances tliat an animal has for its life.
Wo are informed that it bas been learned l»y experience tliat seals may easily be
lost if shot in the neck, as in this case the miiscnlar 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, 80 that you have all these chances of escape i'ov the seals. In
the iirst place he may escape as a carcase, dead, and go to the bottom,
when he does no good to anybody, or ho nuiy be badly wounded, or
sufficiently wounded, simply, to escape.
That there are some lost in this v":y- of course is admitted. How
many, is the question? As I have daid, 50 or 60 per cent is the pro-
portion stated by us of those lo ^.t. The British Commissioners pro-
duce authority to show the number is much smaller; but when the
Members of thi /^'jrh Court read the testimony, they will find that
the pelagic seakr *n they talk of losing the seals that they shoot,
as a general rule, a Jmost in every case only speak of the seals that
they kill; that is to siiy, they shoot a seal and they lose it, and they
call that a loss; but tliey say when they wound them slightly, — they
get well, — no doubt, they get well. I do not think we are bound to
accept their theory; but, certainly, some do get well because they are
found with shot in their skins on the Pribilof Islands. But the
gravity of the wound is a matter as to which opinion is absolutely
worthless. It is enough to say that many of them are wounded, and
some of them must naturally die.
Judge J. G. Swan 'f Port Townsend, Washington, is cited by the
British Commissioners at section 023, he writes as follows:
I have seen several Makah Indians who have been here, and they tell me that
Indians lose very few seals, whether they spear or shoot them, as they are always
so near the seals such times that they can recover them before they sink. Captain
Lavender, formerly of the Scnooner "Oscar and Hattie", who is a very fine shot,
told me that he secured ninety-live seals out of every hundred that he shot.
Now here is a very fine shot, an exceptional shot, Avho 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 iire away a deal of ammunition and not hit anything, but Avould be sure
to report on their return to the vessel that they had killed a seal each time they
lired, but that all the seals sank except the few they brought on board. Captain
Lavender was of opinion tliat 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 8i)ccial attention and
invited inquiry into the matter of the number lost. They explained that when the
seals sink after Iteing killed, as they often do, they sink slowly on a slant, so that it
is usually (piite easy to gaff them. They further afHrnied that the result of the seal-
ing in 1891 Avas, 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 Wbre slant-
ing off after being killed.
The captain of the "Eliza Edwards", interviewed at Vancouver, stated, as the
resiilt of his experience, that sealing must be learnt like any other business. That
green bands might lose as much as 25 per ceiiit of the seals shot. With experienced
uauters the loss is very small, it might possibly amount to 5 per cent.
ORAL ARULMENT OP FREDERICK R. COUDERT, ESQ. 417
B.
y easily he
body often
iiuch lucre
3nt when
iu many
eals. Ill
5 bottom,
luded, or
d. How
the pro-
ners pro-
vhen the
and that
ey shoot,
eals that
md they
ly,— they
bound to
they are
But the
bsolutely
ded, and
i by the
1 me that
ire ill ways
Captain
fine shot,
t.
)5 out of
running;
he had
laws to
be sure
time tlioy
Captain
;o which
conipns-
ition and
when the
80 that it
the seal-
his cause
e slant-
d, as the
H. That
terienced
And on every one of those ships one half the in(Mi were green hands
and this 25 i)er cent is not 2'>% of total loss inchiding tlie 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 tlie 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 witii 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 supi)ose that the testimony
of this gentleman was not true, and there is no reason to suppose that
there were worse shots on his boat than on any other.
I will read some very brief extracts. I will not trouble the court to
look at the volumes, but will give it to my friends on the other side as
I go on. It is so very brief that the court would be troubled to very
little purpose. I am about reading from the Case of the United States,
Appendix, vol. II, p. 313. This is what Peter Andersen of Victoria, a
sealer, says:
I liave been engaged iu the last throe 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, awd Umhrina, all Uritisli schooners. First saw
and took seal off Cape Flattery in March and we followed them clear up the coast
into Behring Sea, where we arrived about July Ist. Shot gnu and rifle exclusively
iu the boats I 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 larger per cent are lost when killed.
That is more than half where a rifle is used. That is in perfect accord
with the British Commissioners who say that the shot gun is much
more deadly. They recommend superseding the rifle with the shot gun.
Bernard Blaidner, of Victoria, a sealer, says:
On an aver.ige 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 tliat 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 tiiat an Indian, or a white luintef luilcss very
expert, will kill and destroy many times more than he will save, if he uses lirearms.
It is our olijeet to take them when asleep on the water, and any attempt to capture
a breaching seal, generally ends in failure.
Alfred Dardeau of Victoria, sealer, was out sealing in 181)0 and
caught 2,159 skins. He says:
Wo had seven boats, and a stern boat ami three men to a boat. Our hunters used
shot guns, and were good hunters. They lost a good many seals, but 1 do not know
what proportion was lost to those killed. Some of the hunters would lose four ont
of every six killed. We tried to shoot them while asle<!p, 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
gaflf hook, but could not save many that way. A good many are wounded and esoupo
only to die afterwards.
Hnnters 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 net ^e
any left in a few years.
B S, PT XII 27
418
ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ.
WliPU a vitic is used a larger jier
Jiinies Hiiyward of Victoria, a sealer has had laijje experience. Was
out in 1887, 1888, 1890. He says:
J «1() licit i,liiiik we got over one linll' that we killed and woiiiidod. Have seen six
out of sev'jii killed sink and won; lost before we conld get to tlu'iii. This happened
last year in a boat I was in. I think the seals are not near as ]>lenty as a few years
ago, and they are nnich more shy and Jiarder to catch now than thev were when I
first wfint out sealing. I think this is caused by hunting them so much with guns.
.T. Johnson of Victoria. He was out six years c*' 'm^' litW 8e>»li»'2:.
He says:
About 40 per cent shot with a shot gun are lost,
cent is lost.
Morris Moss, Furrier, and Vice-President of tlie Sealers Association
of Victoria, say.s — this is an opinion, and will go for what it is worth.
He says :
I cannot say how many seals are killed and wounded hut there is no doubt that
green hunters lose many while those more oxpericuced in the business lose fewer.
There is no doubt about that, and it is conceded by the British Com-
missioners.
^Vhat 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, .. . (irresponiicnt of
the Neiv York Herald, was on the Otto at the same time. He says:
I am convinced that at the very least our hunters lose 50 per cent of the seals they
liit, and probably the majority of those hit ultimately die.
Mr. Daniel McLean whom I have cited before, and who is spoken of
as a succcssftd sealer by the Canadian inspector of tisheries 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 ib according to the amount of annnunition we
use. About one third a'■(^ taken.
Charles I'eterson says he went out sealing 1886, 1887, 1889, 1890 and 1891. Seals
were caught by them (Indians) with sjiears and but few wore lost; but since the shot
gun has come into use a groat many are destroyed and lost.
Henry Moxon of London, Furrier, gives his opinion from common
report :
Have you not heard it alleged that ])elagic 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 liunter would
not lose more.
This is the testimony of our friends on the other side, given by a
gentleman who evidently meant to iiid in minimizing the loss. He is
convinced — that is as far, evidently as he can go — tiiat 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 sectired.
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 Htul further testimony, if it is required,
at pages 409 to 510 of the Appendix to the Argument.
One single word more as to the nuiuijgement. The British Govern-
ment have endeavored to show that too many nmle seals have been
killed on the Tribilof Islands beginning with the year 1870, and that a
e. Was
,'e seen six
lia])peiH>(l
few years
jre wlicii I
ivith guns.
liirjrer j)er
sot'iatioii
is worth.
lonbt thiit
; fewer.
isli Coiii-
oui'iialist
(iKient of
says:
seals they
ipoken of
s quoted.
Lot at, are
uuitiou we
!91. Seals
ce the shot
coiinuoii
)(l Localise
kert lip? —
arge luuu-
I am cou-
lter would
veil by a
lie is
ore tlian
tliat not
may be
leiadded
y killing
witnesses
equiied,
Goveru-
ive been
id tliat a
ORAL -ARGUMENT OP FREDf:RICK R. COUDEKT, ESQ. 419
gradual deterioration in tlie berd Las been taking place. Even if this
could be shown, it would form no justification for ])elagic sealing and
would therefore be considered irreknant. Sujipose it were true; sup-
l)ose tbe United States had been reckless or had employed corrupt and
bad agents, the ])rinciple is admitted to be good. The property — 1 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 disi)uted. 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 i)elagic sealing; and that is the point upon which 1
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 1 will dismiss the subject by reading short extracts
from it. I read from the Counter Case oi the United States, page 65.
In establishiug their assertiou that the number of seals annually killed on the
Islands was excessive, it is insisted by the United States that the Conunissiouers
should be coufined to the first decade of the lease of the Pribilof Isliiiids to the
Alaska Commercial Company (1871-1880), because i)elagic sealing was then too insig-
nific.int to perceptibly affect seal life, and that any consideration of the ni;inage-
nient subsetjiient to the introduction of itelagic 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 iinniber 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 ])elagic 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 vo imperil the existence of the
herd. The British Conimissioners themselves do not so pretend.
On page 67 :
The United States, however, insist that the failure, if any, to take into account
the "new factor" (viz, pelagic sealing) is wholly irrelevant to the true issue, and
they have presented testimony in relation to the management on the Islands for tlie
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 as.sert this with groat couHdenco — a single
instance, where the management on the Islands or the methods eiiii)l(>ye(l thereon
have been changed since 1880 from the "ap])ropriate and even perfect" system
ado])ted 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 ou the proposition,
which the Report endeavours 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, to 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 AUGUMENT OF FREDERICK R. COUDERT, ESQ.
recomnieiulation is obsfiireil in the Report by a collection of <|uot(ition8 from varion*
writint;a, of which he is the author, and by placiug an erroneous interpretation on
his language.
He is theu cited to say this :
In the season of 1868, before the prohibitory law was passed and enforced, numer-
ous parties sealed on the Islanils at will and took about two hundred and fifty
thousand seiils. Thoy killed mostly all the product of 18t)6-77. In making our ciil-
culiitions for breeding seals we did not take that loss into consideration, so that in
1872-7S, when the crop of 1866-69 would have matured, we were a little short. Ilirse
seals had been killed. For that reason, to render the matter doublj' sure, I recom-
mended to the Secretary a diiiiiniition of 15,000 seals for tiie 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 increasingf
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 l»y the
lessees of the decrease of uuile seals, and alleged overdriving and resort to new area*
to obtain the (]uota. The first allegation is based entirely on comparisons betwien
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 duriui; 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 proiiosition, 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 liivc sheep to a certain inclosure or a cer-
tain \ 'ace where they are kei)t 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
Hollowing words: "Whatever may have been the detailed history of the seal inter-
ests on St. Paul in the intcrvenmg years, the fact that in 1879 it became necessary
for the first time to extend tiie area of driving, so as to include Zapadnie and I'ola-
vina rookeries, or the hauling grounds adjacent to them, shows conclusively that a
great change for the worse had already oecnrie<l 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 siipidied its portion to the quota of skins every year of the
lease prior to 1879, as is shown in the table cited.
It is insisted by the United States that driving and redriving after
the introduction of pelagic sealing, if any occurred, was directly charge-
able to the condition created by open sea sealing. We do not deny,
and we have not denied that ])elagic seal hunting introduced a new
condition or factor into the business and that what was eminently
T.roper and successful and led to the prosperity of the industry became
impossible afterwards ; that one hundred thousand were too many; and
ORAL ARG^^fENT OF FREDKHICK R. COUDERT, ESQ, 421
that the United States GoverninPiit was obliged to restrict its killing
because of the killing on high seas and tlie n'ductioii of the birth rate.
They were no longer born as they were before. Taking I'J, I.'?, 14, !;"»,
20 thousand female seals a year for 4, 5, 0, 7 or 8 years naturally caiisetl
an enormous decrease in the birthrate so as actually to threaten and
begin extermination.
Does anyone undertake to justify pelagic sealing? Does any man
but the British Commissioners themsehes, with their new born zeal in
favor of this industry, say that pelagic sealing is a good niethod and
that killing on the islands is a bad method?
There are i)as8ages in their rejxtrt in which they speak of this as the
ideal system, the system of the United States. They say the system
as commenced by Kiissia was an excellent system and that it was con-
tinued by the United States, and that it is practically the ideal system;
but they say the contrary at section 76, and I will give you both their
opinions, and the Arbitrators will choose and attribute to thenv sin-
cerity iu whichever they like.
It is thns cloar that the killing of seals upon tlio lireecling-islaiuls is in itself an
essentially critical and dangerous nitthod of Ivilling, 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 oxceediugly proper and well conceived to insure a large continual
output of skins from the breeding islands, always under the Bui)positiou that tlie
lessees of these islands could have no competitors in the North Pacific.
I do not ask to put it in stronger language. I ask for no better mode
of expressing our vjew upon that subject, that these methods were
theoretically exceedingly j)roi)er 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 hfis worked in the
past, lu'ovided pelagic sealing did not interfere. With that we will
agree. We will admit that our system cannot coexist with the ]>ehigic
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 ajjply a bread and milk poultice to
the bite of a rattle sn.ake, to cure the man who is sutfering. 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. COUDEUT, ESQ.
After the Tribunal has heard it read, the Tribuiiiil tan decide.
It is ail 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
f.ud skill of man, Just as a water course is tapped and I get tlie water
from your farm and put it upon mine. Thus these ingenious British
Commissioners 'ave 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 iiave such a keen sense of smell.
It is section 524 of the British Commissioners report.
This 18 particularly worthy of conHideratioii iu the ease of the Aleutian Islands,
where, iu consequence of the now very small and still decreasing nunilter of natives,
it would not be difBcult to set apart reserves for this purpose, as well us for the
propagation of the sea-otter. The greatest dirti( nlty iu the case of the fur-seal
would doubtless be found in the matter of iuducing the first o(doui/.ntion of such
new rookery grounds.
To that I fully agree. Cest le premier pas qui coiite, as St. Denis said
when his head was taken off. So it « ould be, I undertake to say, if
y(m 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 lias been shown that the smell of the formerly occupied rookeries is one
of the chief— if not the chief— attraction to the first-arriving seals, and as this smell
is inherent chiefly in the soil of these rookeries, it is perhaps not unworthy of con-
sideration whether the transfer of portions of this seal-inipregiiHted soil, and its
scattering over suitable places — particularly such as lie near the migration-route of
the seal— might not lead to their occu])ation. In any case, such reservations would
soon be colonized by the more widely wandering sea-lions and hiiir-seals, and the
security and increase of these, would probably alter a time have the etlect of pro-
ducing a sense of safety which might induce the fur-seal to take uj) its abode there
at the breeding season. The principal objection to experiments of this kind would
be the cost of att'ording the necessary protection, but if such islaiuls 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 sutlicient to cover a large part of this cost.
Similar measures would, of course, be also worthy of consideration in the case of
various places on the shores of Hritish 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 out 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 1 sup-
pose that chemically this might be imitated, ai>d 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 I am very much puzzled about it. It is ingenious.
Jules Verne might enjoy it very much, and write a book upon it. I am
sure he might succeed in populating the islands to his entire satisfaction.
My time is so short that I shall call the attention of the Court in
conclusion only to some of the opinions of the naturalists. On pages
411, 412, and following, of the Appendix to the Case of the United
States are the letters of naturalists. First, we have a statement by
Professor Huxley.
Sir Charles 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.
oil
ei)
ORAL AKGUMKNT OF FREDKHK.K R. C'OUDEKT, ESQ. 423
Hero is what our trioiuls <in the other side say that
ProfesBor IUtxlky says.
(Counter Case of //<»• liiilniiiiic Miijentii'H (ioitriiimiit, p. 183.)
In his Htateniont. printoil in tlic Appouilix to tli<> I'nited Stntos Case, Protrssor
Hiixicy, on tiio siibjcct of tlio possibility of destroyinj; tlio soals when on tlie breort-
ii^-isbindH, writes :
In the case of tiie fur-seal lisheiits. the ilestruptivo ajjenty of inii'i is prepotent
the I'ribilotf Islands. It is obvious that the seals might be destroyed an<l driv
away completely in two or three seasons.
That is a part, and a very small part, of what he says; and on page
412 yon will rtnd a complete statement, wliicli our friends did not take
down:
Might be destroyed and driven away compli-tly in two or three seasons. Moreover,
as the unniber of " Jiachelors" in any given season is easily ascertained, it is possil)lo
to keep clown the take to sneh a percentage as shall do no harm to the stock. The
oonditions for efficient regulation are here (inite ideal.
That is the tribute that Professor Huxley pays to our system. "Thw
conditions are quite ideal."
Sir Charles Kusskll. — He then goes on to say it is imprat'ticable.
Mr. CouDERT. — That may be. 1 mean to say simply this: th'it the
extract given in this Counter Case gives exactly the reverse of what
this eminent gentleman says.
Mr. Justice Harlan. — Kead the sixth paragraph there in Professor
Huxley's letter.
Mr. CouDEUT. — Yes.
Hut in Boliring Sea and on the Northwest coast the case is totally altered. lit
order to get rid of all complications, lot it be supposed that western North America,
from Hohrlng 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 lisheries. Suppose, further, that the
autiiority of that pow^er extended over Hehring Sea and over all the northwest
Paeitic east of a line drawn from the Siinmagin Islands to California.
Under such conditions I should say (looking at nothing but the preservation of
the seals) that the best course would bo to proliibit the taking of the fur-seals any-
where except on the Pribilof Islands, and to limit the take to such percentage us
experience proved to bo consistent with the jtrescrvation of a good average stocl*.
The furs would be in the best order, the waste of life would be least, and, if tiie
system wore honestly worked there could be no danger of overfishing.
Sir Charles K'ussbll.— Will you read No. 7. The Arbitrator has
asked you to road Nu. (i.
Mr. CouDERT. — I will, out of deference to my learned friend on the
other side:
However, since northwest America does not belong to one i< v. ^r, and since inter-
national law does not acknowledge Hehring Sea to be a maic ■\isinn, nor recognize
the jurisdiction of a riverain power beyond the 3-mile limit, it is quite clear tiiat this
ideal arrangement is impracticable.
The Case of the fur-seal fisheries is, in fact, even more difWcult than that of the
Salmon fisheries, in such a river iis the Rhine where the upper waters belong to one
power and the lower to another.
I read 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. I am satisfied hi^ can suggest no better system, and accord-
ing to him, if honestly admitiistered, 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 specien
will take place in a few years, as it has already done in the case of otlier species of
the same group in other parts of the world.
424 OKAL AttGlIMKNT OK FHKDHUK^K H. COUDKUT, KSQ.
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■ii
2. It Hconis to him that the itroj)!'! \\»y of jiiococdinj; wmihl In- to stop tho killliij^
ol' fiMimlt's ami yoniif; of tlio ('iir-Hcal altojitotlior or 118 lur as i)OM(*il)lf, ami to icMtric t
the killing ol' the iiialo8 to a CMutaiii iiunil)or in each year.
3. The only way ho can iniauin(> by wlii( h lli('Ht> I'nlcH oonld ho cftrried out \a \>y
killintc tin' mi'mIm only in the iNliimls at tho Inoi'din;; time (at whii'h lime it a]i|n'ais
that tlio yniin^ malcN kt^ip apart from tiio funialcH and old inalo-i) and hy iirL-vcntiiif;
altogothci , an tiir aa poHaiblo, tho doBtruction of the fnr-8cul8 at all other times and
in other ])hu;es.
FoUowiii};- tlii8 is a ciroiiiar letter of Dr. C. Hart Merrinni. He was
one of the Aniorifaii Commissioners. After having commented as I
have npon tho testimony of tlte liiitish CcMiimissioners, 1 desire to beg
tiiis Migli Tribunal to read the rejxjrtsof our American C"!iimissioner8.
1 am very much mistaken if they will not find an entirely different tone
and teiisjier from that which is found in tiiat of the JJritish Commis-
sioners.
Di. Merriam's letter is too long to be read, lie elicited from some of
the most eminent scientists in the world their opinions, nor will 1 read
those. They are j;eiitlemen eminent in France, in Kngland, in (Jer-
ruany, in 8weucn, in Italy. There is one letter especially, the longest,
which I Lad intended to read, 'nit shall not — thatof Professor Giglioli.
It is an extremely interesting paper. I can say that, almost without
an exception, these gentlemen are of opinion that if the fur-seal is to
be protected, it must be protected by prohibiting pelagic sealing, and
having the killing done on land. They all say that it must be limited
even on land, which of course is precisely what we do. I cannot do
justice to this letter of Professor Giglioli if I read it in part. 1 ' ''
iisk the Court, as I am anxious to close this argument, tliat is air
too long — I will ask them to read these letters of these gentle
They are valuable contributions to science. They are valuable contri-
butions U> 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 arecoiu'erned, 1 am ready
vnd willing to submit the case of the United States. 1 stated to the
i 'ourt that I would endeavor to show, and 1 believe that we have shown,
tiiat tho system of killbig on land is the only one that can ])reservethi8
threatened race of animals which is now being rai)idly 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 plant", jire suggested — anyone would
say: "Youc<mld discriminate in such a way that it would be wcnth
considering", it might be ditl'erent; but whatever plans are brought
before th's Tribunal are only suggestions as to /ones and only sugges-
tions as to time; and when you are told by intelligent men advocating
the other side that the i)elagic sealer can no more be expected to dis-
criminate as to the sex of the animals that he takes than the fisherman
with his hoolv, the stamp of condemnation is put upon the practice.
The Judgment of the Court must follow upon those facts. How can it
be otherwise? What knowledge is there i)roduced l)efbre you that
.shows you that it is anything ehse than whtit Mr. Phelps called contra
honos mores, and absolutely destructive? How long will this last? 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 ottencc with a
ORAL AKOrMKNT OF FUKDHUJCK R. COUDEUT, KS«j. 42.")
fiifiully imtioii, the United States fJoverniiient had said: "We will
^o on ".
'Die I'nited States can atford rather to lose this vaUiahle indiistiy
than to c«)nie into collision with a friendly power; the canse of civili-
zation wonld sillier less than if these two great nations, iinion<;- tiiosi>
that lead the world, those that are giving the exani|>le of tliis practice
that was began at ueneva and is going on now at I'aris, had coaie into
collision. Jf she had said, " We will let it go on" how long wonld the
seals have lasted. There was a tenii)orary interregnum on the islands
one year, and 250,000 of these animals were swept out; and yet these
l»elagic sealers had scarcely tasted blood, and hardly knew what the
conditions were. Their knowledge is growing every day. The small
Meet 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
1 will say confident, that the result will be a step in advaiuie in the
cause of humanity and fair dealing among nations.
One single word now as to the question of damages. 1 do not pro-
pose to discuss that. My learned friend. Judge Blo<lgett, had ])repared
a careful brief. As I understand the T' oaty, this Tribunal has no jwwer
to pass ui)on 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 bad your claims, and we were willing both should
be submitted.
Sir Chakles Russell. — It was the other way, 1 think.
Mr. CouDERT. — The other way, if you plesise. 1 think not. But the
nations were not willing, and they did not submit this question of
liability, simi)ly 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 intrica te
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 i)r(t-
sjjcctive catch of a ship is too remote; that you cannot count u|)(»n such
a catch as a sure result, nor allow for it es])ecially where there lias been
no malice. If it were the case of a malicious taking, where individuals
were concerned, then you might say the law will be etlectual, 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 o«ly 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 wereotlierwise
1 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 K. COUi)ERT. ESQ.
party, after having been <lefeated in the Tribnnal of his own choice,
can call upon the other party to psiy 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
i^npreme 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 Bi itish schooners is for moneys paid,
I think, ifter the submission. At all events, it is only in the Counter
Case, an ' 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 Prfjident. — 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, hunmr, with which yo>i have carried
lis 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 sonieof the best characteristics of the
French nation.
My. Phelps. — Before the Tribunal adjourns, and before the argu-
ment on the otiier side commences, t wish to say for the benefit of the
counsel on the other aide, that in the concluding argument, I shall rely
upon all the authorities that will be found referred to in the printed
argument of t)»e United States between pages 130 and 190, and upon
all the point? chat are made in that part of the argument. Many of
these authorities have not been referred to, and it might possibly be
supi)osed that we were not intending to depend upon them in the con-
cluding argument.
The President. — We will certainly take heed of your remark.
Tlie Tribunal thereupon adjourned to Wednesday, May 10, 181)3, at
11.30 o'clock A. M.
1
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