ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 71 



that, at page 315, there is a letter from Lord Salisbury on tlie 2ik1 of 

 October, 1889, in the middle of which he says: 



lu a despatch to Sir Lionel West dated the 10th Septeraher, 1887, Avliifh was com- 

 municated to Mr. J3ayard, I drew tlie attention of the Government of the United 

 States to the illegality of these proceedings, and expressed a hope that due compeu- 

 sation would be awarded to the sul)jects of Her Majesty who hnd sutfered from 

 them. I have not since that time received from the Governineutof the United States 

 any intimation of their intentions in this respect, or any explanation of the grounds 

 upon which interference with the British sealers had hcen authorised. Mr. Bayard 

 did indeed communicate to us uuofdcially an assurance that no further seizures of 

 this character should take jilace. 



And so on. 



Now, we come to the celebrated contra honos mores despatch, at page 

 39(5, dated the 132nd of January. I may relieve the minds of the Tri- 

 bunal at once by saying that 1 am not going to read it all, as it has 

 been already read more than once. Of course, if there is any ])assage 

 in connection with that doctrine which throws light upon it, 1 will read 

 it if my learned friend suggests. This is the celebrated sentence. 



Several weeks have elapsed since I had the honour to receive through the hands of 

 Mr. Edwardes. 



Subjects which could not be postponed have engaged the attention of this Depart- 

 ment, and have rendered it impossible to give a formal answer to Lord Salisbury 

 until the present time. 



In the opinion of the President the Canadian vessels, arrested and detained in the 

 Behring Sea, were engaged in a pursuit that is in itself contra honos mores — a pursuit 

 which of necessity involves a serious and permanent injury to the rights of the Gov- 

 ernment and people of the United States. To establisli tliis ground, it is not neces- 

 sary to argue the question of the extent and nature of the sovereignty of this 

 Government over the waters of the Behring Sea; it is not necessary to explain, cer- 

 tainly not to define, the powers and privileges ceded by His Imperial Majesty the 

 Emperor of Russia in the Treaty by wliich the Alaskan territory was transferred to 

 the United States. The weighty considerations growing out of that territory, with 

 all the rights on land and sea inseparably connected therewith, may be salely left 

 out of view while the grounds are set forth upon which this Government rests its 

 juslification for the action complained of by Her Majesty's Government. 



And then he proceeds to argue upon the ground that this is an 

 immoral traffic, that it is a traffic which interferes with the rights of the 

 Government and people of the United States, and then he j)roceeds, 

 rather adroitly, having made some approaches to argument in support 

 of his own view, to shift the onus. 



He says at the bottom of page 397: 



Whence did the ships of Canada derive the right to do in 1886 that which they had 

 refrained from doing for more than 90 years ? 



And finally he refers to the fisheries on the banks of Newfound' 

 805 land as if suggesting there was some i)arallel, and he refers to 

 dynamite or giant-powder explosions — those I will refer to 

 because they are afterwards used by Mr. Phelps. He asks why the two 

 cases are not parallel. I will attempt to give the answer a little later. 

 And he finally sayii: 



In the judgment of this Government the law of the sea is not lawlessness. 



Which is a graceful piece of alliteration. 



Nor can the law of the sea and the libertj' which it confers and which it protects 

 be perverted to justify acts which are immoral in themselves. 



Well I need not say therefore that in this despatch, although he sug- 

 gests that there may be grounds based upon jurisdiction derived from 

 Kussia, liis main ground is that the thing is contra honos mores, a crime 

 in itself, a crime which they, the United States, have a right to com- 

 plain of, because it is an injury to them. 



