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



The issue ns presented involves an examination of a most pertinent and critical 

 question of inteniatioiial law. It will be necessary to ascertain, tirst, the right of 

 the Inijierial (joverinueut of Russia to tiie Behring Sea anterior to the Treaty of 

 March, 18U7, and for inlonnation upon this subject I am larf^ely indebted to Mr. N. 

 L. .Jetiries for a collection and citation of authorities and historical events, and for 

 the want of books at my comnuind upon this question, I am compelled to rely for 

 historical facts upon his carefully prepared brief. From this elaborate brief I glean 

 the following facts. 



Then he describes the Sea of Kamschatka. He describes how Peter 

 the Great in the early part of the Eighteenth Century directed the 

 exploring expedition ; the Court will be able to follow tlie dates. He 

 talks of the expedition of 1725, and the expedition of 1728; and 

 the discovery of the Island of Saint Lawrence; and the expedition 



of 1741. 

 847 Sir Charles Russell. — Those are the events mentioned in 



the brief, which we have not read in full, and which are referred 

 to in the order that the Judgment refers to them. 



Sir EicHARD Webster. — The vessels were the " St. Paul " and the 

 " St. Peter"; and, on the 18th of July 1741, Behring first saw the Con- 

 tinent of America. And he describes Behriug's visit. 



The enterprising spirit of Russian merchants and traders even in Siberia was 

 awakened by the accounts given of the industries that might be created. 



The President. — That brief was the practical foundation of both 

 judgments of 1886 and 1887, was it not? 



Sir EiCHARD Webster. — Yes. At page 117 he refers to the Ukase 

 of the 27th December, 1799, and then reads from Mr. Chief Justice 

 Marshall's judgment in JoJmson v. Mcintosh: 



On the discovery of this Immense continent the great nations of Europe were eager 

 to appropriate to themselves so much of it as they could acquire. 



Then he refers to Chancellor Kent. 



All that can be reasonably asserted is that the dominion of the sovereign of the 

 shore over the contiguous sea extends as far as is requisite for his safety, and for 

 some lawful end. 



And then he refers to Vattel, and then, at the top of page 118, he 

 proceeds. 



The Queen's counsel lays much stress in his argument upon the fact that both the 

 United States and Great Britain treated with Russia (the United States in lN2f , and 

 Great Britain in 1825) in relation to the free use of the waters in Behring Sea, and it 

 is claimed that by these Treaties the sea was thrown open as the common property 

 of mankind. But an^examination of these Treaties and the objects in view by the 

 three great Powers fails to warrant the conclusion reached in the argument. The 

 principal parts of the Treaty between the United States and Russia, the treaty 

 between Great Britain and Russia being similar, are thus set forth by Professor 

 Wharton; 



And he reads Articles 1, 2, 3, 4, and 5 of the Treaty of 1824. And 

 at the bottom of the page he continues: 



Nations, like individuals, have the right of contracts, and their treaties are sub- 

 ject to the same rules of interpretation and of morality which govern in municipal 

 law. 



"Estopped" in law is a term, the etymology of which implies the preclusion of a 

 person from asserting a fact by previous comluct, inconsistent therewith, on his own 

 part or on the part of those under whom he claims. It is in law a prohibition whicli 

 denies a man the right of alleging or denying a fact in which he has with a full 

 knowledge long acquiesced. Applying this rule the conclusion can not be escaped 

 that in consequence of the acquiescence of Great Britain in the claim, jurisdicton, 

 and dominion of Russia to what is now known as Behring Sea since the expiration 

 of the Treaty of Russia and Great Britain in 1825, which was to exist ten years. Great 

 Britain and her Dominion Government, of which British Columbia is a part, are 

 estopped from any claim of righ t or privilege of taking fur bearing animals in Behring 

 Sea, east of the line mentioned as our western boundary in the Treaty. 



