ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 279 



lie facto territorial dominion and no more. Tliat is clear from the pas- 

 sage I read. 



May I read it again? This is on page IG of what I think is a regu- 

 lar Keport, and verbatim the same as the passage my learned friend 

 referred to : 



If we assume that the record shows the locality of the alleged offence and seizure 

 as stated, it also shows that officers of the United States, acting under the orders of 

 their Government, seized this vessel engaged in catching seal and took her into the 

 nearest port; and that the Law Officers of the Government lihelled her and pro- 

 ceeded against her for the violation of the laws of the United States in the District 

 Court, resulting in her condemnation. How did it happen that the officers received 

 such orders? It must be admitted that they were given in the assertion, on the 

 part of this Government of territorial jurisdiction over Behring Sea to an extent 

 exceeding 59 miles from the shores of Alaska: 



That 59 miles is mentioned, you will understand, because the vessel 

 was caught at about that distance. 



That this territorial jurisdiction, in the enforcement of the laws protecting seal 

 fisheries, was asserted by actual seizures during the seasons of 1886, 1887 and 1889, 

 of a number of British vessels; that the Government persistently maintains that 

 such jurisdiction belongs to it, based not only on the peculiar nature of the seal 



fisheries and the property of the Government in them, but also on the position 

 1054 that this jurisdiction was asserted by Russia for more than 90 years, and by 



that Government transferred to the United States, and that negotiations are 

 pending on the subject. 



And then he proceeds, on the lines ray learned friend refers to, to 

 point out that in the Statute as finally enacted, the words "all the 

 waters of Behring Sea in Alaska embraced within the boundary lines 

 mentioned and described in the treaty with IJussia of 1867" were 

 omitted, and the expression "all the dominion of the United States in 

 the waters of Behring Sea" was substituted. 



Then he proceeds: 



If reference could be properly made to such matters (for the act, as finally 

 approved, must speak for itself) still we do not concur in the view that it follows 

 that Congress thereby expressly invited the judicial branch of the Government to 

 determine what are " the limits of Alaska Territory and the waters thereof", and 

 what is "the dominion of the United States in the waters of Behring Sea", and think, 

 on the contrary, that there is much force in the position that, whatever the reason 

 for the conservative course pursued by the Senate, the enactment of this section 

 with full knowledge of the executive a.ction already had and of the diplomatic 

 situation, justified the President in the conclusion that it was his duty, under Sec- 

 tion 3, to adhere to the construction already insisted upon as to the extent of the 

 dominion of the United States, and to continue to act accordingly. If this be so, the 

 application calls upon the Court, while negotiations are pending, to decide whether 

 the Government is riglit or wrong, and to review the action of the political depart- 

 ment upon the question, contrary to the settled law in that regard. 



Therefore my friend's latter statement is quite correct. I quite admit 

 it, but it is not correct to say, as stated in the printed Argument, that 

 the Court intimated an opinion that the capture could have been justi- 

 fied in law as a defence of national interest. That is the main dividing 

 line between us. 



Now, Mr. President, I come back to the question, and I repeat the 

 hypothesis on which it is to be regarded, — the datum for the argument. 

 I have to assume, and the proposition that my learned friend advanced 

 assumes, that there is no property in the seal, and no property in the 

 seal herd. 1 have also a right to assume that the general right of fish- 

 ing acknowledged by the Treaty of 1824 between liussia and the United 

 States, and the same general right of fishing acknowledged by the 

 Treaty of 1825 between Russia and Great Britain, did not except any 

 living thing in the sea. I have further to assume that that was but a 



