6 ORAL ARGUMENT OF filR CHARLES RUSSELL, Q. C. M. P. 



after tliis matter liad been under discussion diplomatically from Aug^ust 

 of 3886 till the end of 1899 — I am reterrinft', as of course the Tribunal 

 will recollect, to the despatch of the late Mr. Blaine, — declared in his 

 despatch of the 17th of December, LS9(), that if Great Britain could 

 satisfactorily establish that Behring Sea was included, in the Treaty of 

 18l'o, in the term "•Pacitic Ocean," the United States had no well- 

 founded cause of complaint against Great Britain. 



It is odd that it should be so, but it is left to me, to some extent at 

 least, to vindicate the intelligence and the perspicacity of that distin- 

 guished American statesman. He was putting forward a case, not a 

 very hoi)efnl one, certainly, but still a case infinitely more hopeful — if he 

 could have established historically the acquiescence of Great Britain — 

 infinitely more hopeful than the case which is now put forward of prop- 

 erty, and right of protection of property, or of an industry founded 

 upon property. 



The last change of front is this. It is not, I will admit, as marked 

 as the other two to which I have adverted. We are now told that 

 although strictly the United States could in point of law insist upon its 

 claim of property to the individual seals wherever they may be found, — 

 whether it be three thousand miles south of the Aleutians, oft' the 

 southern part of California, or elsewhere — yet the needs of the United 

 States case do not require so high a position as that. Also, that while 

 the property in the lieM might be claimed by the United States, still it 

 is not necessary to put it even so high as that. And ultinia,tely we have 

 come to this liosition — a very extraordinary position — that even if it be 

 found, as I hope to make it clear it must be found, that neither in the 

 seal as an individual, nor in the herd as a collection of individ- 

 727 uals, does any legal property exist in the United States, yet 

 they have a legal right to claim, and a legal right to exercise, a 

 power of protection over an industry founded upon the skinning of the 

 seals upon the Pribilof Islands. 



Mr. President, from these observations you will have gathered, 

 although I doubt not you were not unprepared for them, how widely 

 we difier in the vicM^s which we take of the legal questions involved in 

 this controversy. But the discussion has been exceedingly interesting ; 

 interesting to us as lawyers, mainly because of the courage — I will not 

 say the audacity — with which my learned friends have propounded 

 proj)ositions of law which they affected to suggest w^ere almost beyond 

 question : propositions of law for which I hope to demonstrate there is 

 no legal authority whatever. 



General proposi- ^^^ ^^ ^ Hie glauce at some of these propositions^ they 

 tiousiniunt.iiuedby arc ccrtaiuly sufficiently startling. I shall have to come 

 United states. ^^ closcr quarters with" them later, but I am at present 

 endeavouring to present what I may be iiermitted to call a bird's-eye 

 view of the field traversed by my learned friends. I address myself 

 principally to the argument of my learned friend Mr. Carter, because 

 the argument of Mr. Coudert was, as it seemed to us, in its major part 

 at least, and in its more imi)ortant part, addressed to the question of 

 Eegulations rather than to questions of legal right. 



i^ow what were some of these propositions? One was that the right 

 of protection of the property and interests of a nation are exactly the 

 same in time of peace and in time of war: from which my friend derives 

 the comforting conclusion that ships of a friendly power may be 

 searched, seized, and confiscated because they are pursuing the oldest 

 form of the pursuit of seals known in the history of the world — because 

 they are pursuing pelagic sealing: and that the United States are 



