38 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



this remarkable state of facts: First, that the United States has never 

 by any legislation pronounced pelagic sealing to be a crime or a wrong 

 if committed by its own nationals outside a given area; and next we have 

 the further extraordinary fact, — all the more extraordinary when it is 

 borne in mind that what the United States claimed the right to do as 

 regards the ships of other nations is claimed by them as a mere protective 

 right, — that they have never even affected to exercise that protective 

 right outside Ueliring Sea even against their own nationals. The Tribu- 

 nal is aware that the seizures have been confined to Behring Sea, and 

 that there has been no pretence of even any attempt to restrain, by 

 executive or by legislative action, pelagic sealing outside that area. 



Kow I have said all that I desire to say in defence of the Commis- 

 sioners. So far as they are chroniclers of fact their good faith is not 

 questioned by my learned friend: so far as they express opinions and 

 make suggestions, those will be judged by this Tribunal upon examina- 

 tion according to their intrinsic merits. I only ])ause to point out that 

 they have spoken in general of the right of pelagic sealing, a right I 

 say which has never been questioned till this controversy has arisen. 

 They then in the succeeding paragraphs proceed to consider the case, 

 so far as that question of pelagic sealing comes into controversy as 

 between the United States and Great Britain. 



I leave this subject, not venturing to express any opinion of my own, 

 which I conceive not to be quite regular; but humbly submitting to 

 this Tribunal that tike more the details of this liei)ort are examined the 

 more it will be found that these Commissioners have ai)proached the 

 subject with perfectly free and open minds, and have only embraced in 

 their consideration topics which, by the terms of the mandate under 

 which they were acting, they could not properly have excluded. 



Now I have only one other matter to observe upon before I come to 

 Novelty of claim closer grips with the actual questions in this case. I 

 of United states, jj^ye to draw the attention ot the Tribunal to the extraor- 

 dinary novelty of the claim which is here asserted. This idea, if I 

 am able to convey it to the minds of the Tribunal, must have a very 

 serious effect in arresting the attention and fixing the mind of each 

 member of it u]ion the legal considerations, and the consequences which 

 will follow if the right is declared to be based on legal considerations. 

 I said yesterday, I repeat it to-day, that at various stages of the 

 world's history, according to their varying powers, nations have from 

 time to time advanced extravagant pretensions. They have 

 7G5 largely acted in assertion of those pretensions upon the consid- 

 eration, so it must be admitted, of their power tf> give effect to 

 them. It would be idle and hopeless to undertake the task of justifying 

 on high moral grounds, or on ininciples of abstract justice and equity, 

 many principles and many acts performed by many Governments at 

 various periods of the world's history. But those are, generally speak- 

 ing, pretensions of a comparatively remote period, and before the moral 

 force of public opinion of the world was the great controlling power 

 which it is to-day, when the rule of might rather than the rule of right 

 prevailed. Amongst the Powers who advanced those great pretensions, 

 prominent among them, unquestionably, were Great Britain and Spain. 

 They were not the only ones, for there is hardly a great Power of which 

 the same may not be said. Amongst those pretensions were assertions 

 of control, dominion, and sovereignty over a large extent of ocean, 

 without physical boundary, and without any external marks of delim- 

 itation; but even in those days of assertions, unjustifiable as I believe 

 them to have been in most cases — certainly in many — I find no record 



