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



would scarcely be lield I think by any Court that that was an act from 

 which malice would not be implied. 



Sir Charles Eussell. — Surely Mr. Senator you are putting an 

 impossible — an extravagant case; but I will tell you what the remedy 

 would be; and here lies I think the confusion that has prevailed in the 

 branch of the argument which deals with the rights of self-defence and 

 self-preservation. In such a case as that the United States would say: 

 whether we have a legal right or not, this is a matter so important to us 

 that we will take our stand and make it, if need be, a matter of war. 

 That is what they would say. 



Senator Morgan. — Or an Arbitration such as this. 



Sir Charles Eussell. — No : this Arbitration has nothing to do with 

 rights of war. This is to declare legal rights in time of peace. 



But I must follow up this j^oint, as the President has broached it for 

 the first time, and I was not intending to do more than make a passing 

 allusion to it. The suggestion of the learned President is that the seal- 

 ing outside Behring Sea and under the modus vivendi of 18!)1, and of 

 1892, while they were in operation, might itself — of course he was not 

 expressing any opinion — but he suggested whether that might not be 

 regarded as malicious. Let me recall the facts. The United States has 

 the power to control its own citizens everywhere. It had the power 

 both before its acquisition of this territory and after its acquisition of 

 this territory, to impose any restrictions it chose upon its own nationals 

 wherever those nationals were. After 1807, the United States acquired 

 an interest in these islands: the nature of that interest we are 

 1060 now discussing. Is it not a little strong to say, or even to sug- 

 gest, that they could have regarded the pelagic sealing of their 

 own nationals, carried on from 1807, for a period of so many years, as a 

 malicious injury to them? We have the extraordinary fact that accord- 

 ing to the law of the United States, as it is to day, pelagic sealing 

 outside Behring Sea is a perfectly lawful thing; and yet it is to be sug- 

 gested that pelagic sealing outside Behring Sea was a malicious thing 

 done to injure the United States. So regarded, the suggestion becomes 

 grotesque. 



I do not know whether the learned President realizes the point I am 

 now putting: that absolutely according to the law of the United States 

 as it is to-day pelagic sealing is a lawful i»ursuit outside Behring Sea. 



The President. — I perfectly realize what you state, and what the 

 American counsel have argued, but we must keep in remembrance that 

 all these matters are extremely recent — pelagic sealing has not been 

 foitnd fault with until 1880. Very few years have passed, and in all 

 countries the action of legislation is always slow. 



Sir Charles Eussell. — With great deference, I am dealing with the 

 thing as it is. Pelagic sealing has gone on as the oldest pursuit of seals 

 from time immemorial. Since the time that seals were first hunted, 

 they were hunted peJafjicallij, and it is no answer to say that it was then 

 conducted upon a scale and at a time when it did not affect, in a material 

 degree, the interest of the United States. But I am coming a little 

 closer to the acticm of the United States. The learned President refers 

 to the years 18!>1 and 1892, but is he aware that the books before him 

 show that in 1891, engaged in i^elagic sealing, outside Behring Sea, 

 were 48 American vessels, and in 1892 outside Behring Sea were engaged 

 46 American vessels — lawfully, according to the law of the United States, 

 engaged in this pursuit of pelagic sealing, and engaged in it ever since 

 1880; because although it increased, as the learned President (piite 

 rightly said, in later years, and increased considerably iu later years, it 



