ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 43 



770 I ought to say iu passing that my friends say that Mr. Bout- 

 well's letter had reference to sonietliing outside Behring Sea, 



outside the Aleutians, and therefore that it has not the significance 

 which otherwise might have been attached to it. It is not very 

 important to consider that one way or the other. Then on page 95 he 

 proceeds to consider an argument as regards the seal fishing on the 

 Asiatic coast: 



No doubt, the condition of the Siberians on that coast wonld present a strong case 

 for generous action on the part of foreigners in abstaining from interference with 

 their means of gaining a livelihood. By couimou consent, out of regard to the hard- 

 ships of their life, fisLermen are not disturbed in their j)ur8uit8 in time of war. But 

 can the Russian argument, even if it has validity for the Siberians, be used by us? 

 We have without any scruple, for half a century, taken whales in the seas adjacent 

 to them. We can hardly assert with much plausibility that the members of the 

 Alaska Commercial Company, which has the monopoly of seal catching in and near 

 the Pribilof Islands, can plead in forma pauperis for protection on grounds of charity. 



It may be argued that since most of the seals which are taken by the British breed 

 on our soil in the Pribilof Islands, we have an exclusive claim to them in the sea, or 

 at any rate a right to protect them there from extinction. But some of them breed 

 on Copijer Island and Behring Island, both ofAvhich belong to Russia. How is it 

 possible to maintain any claim to ownership in seals on the high seas under any 

 principle of law applicable to wild animals? We can acquire no property rights in 

 animals ferce naiurce from their birth on our soil, except for the time that we hold 

 them in our possession. A claim by Canada to the wild ducks hatched in her terri- 

 tory, after the birds have passed her boundary, would seem to be just as valid as ours 

 to seals iu the open sea. 



I recall only one case which seems to furnish any analogy for the claim that we 

 may regulate seal fishing in the open waters of Behring Sea. The British Govern- 

 ment does regulate and control the pearl fisheries in the open sea irom 8 to 20 miles 

 west of the northern end of Ceylon. But it is to be presumed that this is done under 

 sufi'erance of other Powers; because they have had no interest in interfering with 

 the pursuit of the pearl divers. Should they claim the right to seek peails in those 

 waters, it is not easy to see how Great Britain could oppose any argument, except 

 that of long acquiescence by them, in her exclusive possession of the pearl grounds; 

 and it is questionable whether that argument would have much weight. 



It may be said that if we have no right to exclude other nations from taking seals 

 in the open waters of Behring Sea, and if the law and the Treasurj' Regulatious as 

 they now stand can be enforced against our own citizens in those same open waters, 

 we are clearly discriminating against our own countrymen. The foreigners may 

 kill seals at times and in places forbidden to us. This is true. It is one of the 

 anomalies and embarrassments of the present situation. 



On the whole, we find no good ground on which we can claim as a right the 

 exclusion of foreigners from the open waters of Behring Sea for the purpose of 

 protecting the seals. 



Then having discussed the question as a matter of right, he proceeds 

 to suggest that it is a matter in which other Powers, Great Britain, 

 Eussia, Japan and so on, are interested, and that they should and 

 ought to agree to measures for the preservation of the species: this of 

 course is the position we have adopted. 



Lastly, I will cite another American publicist, who is editor of a 

 well-known book, which, I, myself, have frequent occasion to use pro- 

 fessionally, and which has now reached the 0th. edition. It is an 

 introduction to the study of International law by Theodore 



771 Dwight Woolsey — Woolsey's International Law. The edition 

 which is before me is by his son, and certainly he does not mince 



matters. I need not say that patriotism would suggest to him, if his 

 conscience as a lawyer permitted him — 



Mr. Phelps. — He is not a lawyer. 



Sir Charles Russell. — Well, if his conscience as a jurist permitted 

 him, to say what he could ; but after dealing in section 59 with the broad 

 principle which lies at the root of this matter — that the high sea is free 

 and open to all nations — that it cannot be the pioperty or subject to 

 the Empire of a particular State — that the things in it are free to all to 



