ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 313 



that they thought that the United States Government had gone a great 

 deal too far ; but I will read the despatch in a moment. 



Now on page 154 you will find a reference, which will be easily 

 appreciated, to the Orders in Council of 1809. This is touching on a 

 very sore subject, though its soreness has been somewhat mitigated by 

 time. One great Power was at war, practically, with a combination of 

 other European Powers, and the Emperor Napoleon had prohibited 

 British commerce with certain neutral ports; and, as a retaliatory 

 measure of war, British Orders in Council were issued exactly in the 

 same way as had been done by Napoleon : there was a similar inter- 

 diction: it was act against act: the Powers were involved in a 

 1091 struggle for mastery, each doing what it could to minimise the 

 enemy's powers of resistance and attack. What light it throws 

 on this matter I confess 1 do not know, but I do observe that when the 

 Orders in Council were brought before prize courts for adjudication, 

 the exceptional character of these Orders in Council was recognized; 

 for I see at page 155 of the Argument of the United States my friend 

 cites, with great fairness, from Lord Stowell, then Sir William Scott: 



Again, speaking of those retaliatory measures as necessary for the defense of 

 commerce, he says in another case : 



In that character they have been justly, in my apprehension, deemed reconcilable 

 with those rules of natural justice by which the international communication of 

 independent States is usually governed. 



And immediately before that he says: 



When the State, in consequence of gross outrages upon the laws of nations com- 

 mitted by its adversary, was compelled by a necessity which it laments, to resort to 

 measures which it otherwise condemns, it pledged itself to the revocation of those 

 measures as soon as the necessity ceases. 



And this again was war. They were engaged in what may be 

 described as a death struggle. 



Now, Mr. President, 1 come to a reference on page 155 which is of 

 quite a different character, introduced here strangely out of its order 

 as it seems to me. It is a statement, and, as we conceive, an entirely 

 misleading statement as to the views asserted by Great Britain in 

 relation to rights of fishery off the coast of Newfoundland and Nova 

 Scotia. At best it would be an argumcntum ad liominem; but it is so 

 seriously in error in point of fact that I think it is well that the matter 

 should be fully, clearly, and chronologicall}^ put before this Tribunal. 

 I say so all the more because, in relation to this matter of the New- 

 foundland fishery, Mr. Phelps on page 157 of his argument says: 



If the countries now contending were right then, 



that is to say, in reference to the fishery claims on the east coast of 

 America, and on the coasts of Newfoundland and Nova Scotia. 



in the views entertained by both governments and by all who were concerned for 

 them, in cabinets, diplomacy. Congress, and Parliament, and in the claims then 

 made, conceded and acted upon ever since, the precedent thus established must be 

 decisive between them in the present case. There cannot be one international law 

 for the Atlantic and another for the Pacific. If the seals may be treated, like the 

 fish, as only ferce nalurw, and not property, if the maintenance of the herd in the 

 Pribilof Islands is only a fisherj^ how then can the case be distinguished from that 

 of the fisheries of Nova Scotia and Newfoundland? Why would it not be, until 

 conceded away by treaty or thrown open to the world by consent, a proprietary 

 right belonging to the territory to which it appertains, and which the Government 

 has a right to defend? 



I have to say, in the first instance, that I accept the challenge 



1095 which is covered by that statement. We do not insist, and I 



shall prove we have not insisted, on a different law, or upon 



