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



So far as the Uuited States is concerned probably that may be cor- 

 rect; I do not stop to criticise that. Then he goes on: 



It cannot follow that the United States ever intended to abandon the just right 

 acknowledged by the Ist Article to belong to them nnder the law of nations — to 

 frequent any part of the nnocciipied coast of North America for the purpose of fish- 

 ing or trading with the natives. All that the Convention admits is an infer»;nce of 

 the right of Russia to acquire possession by settlement north of 54° 40' N. Until 

 that actual possession is taken, the 1st Article of the Convention acknowledges the 

 right of the United States to fish and trade as prior to its negotiation. 



Then in his despatch of the 23rd February, 1838, Count Kesselrode 

 says: 



It is true, indeed, the first Article of the Convention of 1824, to which the pro- 

 prietors of the "Loriot" appeal, secures to the citizens of the United States entire 

 liberty of navigation, in the Pacific Ocean, as well as the right of landing without 

 disturbance upon all points on the northwest coast of America not. already occu- 

 pied, and to trade with the natives. 



Again, Mr. Dallas wrote to Count Nesselrode on the 5th (17th) 

 March 1838, and in that he interprets the Convention as applying to 

 any part of the Pacific Ocean. He says : 



The right of the Citizens of the United States to navigate the Pacific Ocean, 

 921 and their right to trade with the aboriginal natives of the north-west coast of 

 America, without the jurisdiction of other nations, are rights which consti- 

 tuted a part of their independence as soon as they declared it. They are rights 

 founded in the law of nations enjoyed in common with all other independent sov- 

 ereignties, and incai>able of being abridged or extinguished except with their own 

 consent. 



Then he proceeds to argue the question; but I do not think I need 

 trouble the Tribunal to read the whole of that, although I do not mean 

 to suggest it is not important; but it looks like piling up a mass of 

 argument upon a point which we have to submit is exceedingly clear. 



Somewhere between 1835 and 1845 the whaling industry seems to 

 have become very important. Whalers undoubtedly had penetrated to 

 Behring Sea, and accordingly you will find at the bottom of page 83 

 this statement : 



At this time — 



that is in 1840: 



whalers were just beginning to resort to Behring Sea; from 1840 to 1842 a large part 

 of the fleet was engaged in whaling on the " Kadiak Grounds". Writing in 1842, 

 Etholen says, that for some time he had been constantly receiving reports from 

 various parts of the Colony of the appearance of American whalers in the neighbor- 

 hood of the shores. 



In the same year Etholen relieved Kuprianof as Governor at Sitka. 



In 1841 the Charter of the Russian American Company was renewed for a further 

 term of twenty years. Etholen reported the presence of fifty foreign whalers in 

 Behring Sea. 



I hope the importance of this is appreciated — whaling is one of the 

 things expressly mentioned in the Ukase. There is no restriction in 

 the Treaty to any kind of fishing; it is general and without qualifica- 

 tion. Then at the bottom of page 83 you will find this: 



In 1842, according to Etholen, thirty foreign whalers were in Behring Sea. He 

 asks the Russian Government to send cruisers to preserve this sea as aniare claii,iiivi. 



His efforts were, however, unsuccessful, the Minister for Foreign Affairs replying 

 that the Treaty between Russia and the United States gave to American citizens the 

 right to engage in fishing over the whole extent of the Pacific Ocean. 



The reference to that is given. 



Mr. Justice Harlan.— Who is Etholen? 



Sir Charles Russell. — He was at that time Governor of Alaska. 



