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



I will only observe in passing that tliis is quite a mis appieliensioii of 

 tlie i)08itioii in Avhicli the question is to be viewed, and that the latter 

 one of those suji\tiestions bejzs the (|uestion which was really in dispute. 



jS^ow I have only one further rclerence to make to this correspond- 

 ence, and it is of a j;eiu'ral natuie. Several subsetiuent letters })assed. 

 Lord Salisbury conibatiiiii', demolishing as I submit, the argunu'iit of 

 IMr. JMaine on the construction of the Treaty; and, linally, with the 

 despatches of 17 J)ecember, 1890, the discussion on paper substan- 

 tially came to an end. That despatch will be tbund on ])age 37 of the 

 second part of the large volume. This is a still more api)alling letter iu 

 ])oint of length, because the letter itself extends from i)age 37 to page 

 50, and with its inclosures it extends, I thiidf, to about page 04. I again 

 have pleasure in following the judicious exanijde of my friend Mr. Car- 

 ter; 1 will not read it. 1 give the same reason which I have given in 

 reference to the previous despatch, because I have to deal Avith that 

 matter as a separate argument. 



The whole of this letter is conversant with the same (piestion of justi- 

 fication under derivative right from Kussia, with one exception, and 

 that is the exception which is to be found in the concluding part of the 

 letter at page 50. It is the letter which begins with that remarkable 

 statement that my learned friends are not now prepared to endorse or 

 to agree with, on page 37, in which Mr. Blaine, a man of acuteness of 

 mind having obviously carefully studied the question, and having at 

 his command I ])resume the best legal ability which the Bar of the 

 United States can furnish him with — and we know how high that 

 811 ability is — states that if Great Britain can show that Behring 

 Sea was included in the phrase " Pacific Ocean" in the Treaties 

 of 1824 and 1825, then the Secretary of State representing the United 

 States, must admit that the United States have no well grounded com- 

 plaint against her. Now this is a serious statement. It is a statement 

 made after the matter has undergone ]n-olonged discussion. We have 

 now arrived at the month of ]3ecemi)er, 18il0, the discussion arising 

 out of seizures whicdi had taken place in August, 1880. Therefore, four 

 years and some months have elapsed during which the question has 

 been thrashed out in discussion on both sides: and, as one may natu- 

 rally presume, discussed in the Cabinet Councils both iu Great Britain 

 and in America. Yet here is this statement. "Satisfy us that Beh- 

 ring Sea was included under the description of "Paciflc Ocean" in the 

 Treaties of 1824 and 1825, and we admit that we have no well grounded 

 complaint against you". I shall sui^j^ort that proposition of Mr. Blaine 

 in argument. It is the proposition that has to be established, that, 

 unless there was acquiescence, or recognition, or a course of conduct 

 which estops or binds England in relation to asserting rights in Beh- 

 ring Sea, if she shows that Behring Sea was in fact included in the 

 Pacific Ocean, then she establishes two things, first of all, that Russia, 

 if she ever made the assertion, did not persevere in it: and next, if the 

 Treaty does include and cover Behring Sea under the phrase "Pacific 

 Ocean" that it was a clear and distinct recognition by llussia of the 

 rights of Great Britain to fish in Behring Sea. But there is, as I have 

 said, one qualification upon this statement, and it is this: on the 12th 

 September, 1888, my learned friend, Mr. Phelps, had Avritten, not to 

 the Government of Great Britain, but to his own Government a letter 

 which has since become important. It Avas not communicated to the 

 Government of Great Britain, it lay I Avill not say "^erc/i/e", but,. unno- 

 ticed apparently in the archives of the Foreign Secretary for two years 

 and some mouths, and Mr. Blaine, coming across it, reijroduces it and 



