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



1127 Case; and yet we have in the arj>uiiient of the United States 

 tliese cases reproduced as it' tbey bad not been explained, and 



the whole statement of explanation discarded as if it had not been made 

 at all. 



The President. — Perhaps that may be accounted for by chronology : 

 that the Argument had been made before the Counter Case was 

 delivered. 



Sir Charles Eussell. — There was an extension of time; but if my 

 friend says so I will accept that. 



Mr. Phelps. — Certainly not. We stand upon the Argument without 

 any reference to chronology, and we expect to sustain it. 



Sir Charles Eussell. — Then my friend will not accept the shield, 

 Mr. President, which you are good enough graciously to offer. 



Mr. Justice Harlan. — What is your point? that the American Argu- 

 ment should have referred to the Counter Case and not reproduced the 

 statutes in it? 



Sir Charles Eussell. — My argument is — if it deserves to be desig- 

 nated by the name of argument — my observation is that whereas in 

 our Counter Case we had stated the facts as they are — 



Mr. Phelp^. — As you claim them. 



Sir Charles Eussell. — The facts as they are as to this legislation: 

 in the United States Argument that statement of the facts as they are 

 is entirely disregarded as if it had not been made; the whole statement 

 is ignored. It is not an important matter; but I think it is fitting to 

 make some reference to it because one would have expected that when 

 in the British Counter Case the explanations were given, some notice 

 would be taken of those explanations, and if they were incorrect, that 

 the points in which they were incorrect would have been pointed out. 



On page of our Argument 39 we state that : 



The claim of tlie United States to rest their case on the precedents of the laws of 

 other nations forms a distinct branch of their case, and requires to be specially con- 

 sidered. 



Such laws are referred to by the United States, for three objects: 



1. To endeavour to prove a uniform practice of nations to protect seal life from 

 destruction by means of extra- territorial legislation. 



2. To endeavour to show a uniform practice of nations of extending the provisions 

 of their fishery laws beyond the 3-mile limit ; and of making these provisions appli- 

 cable to foreigners. 



3. To show that other examples of extra-territorial jurisdiction are to be found in 

 the laws of other nations. 



The deductions desired to be drawn by the United States from the examples cited 

 are: 



From 1. That the United States law under which British vessels have been seized 

 is justified by the laws of other nations for the protection of seals. 



From 2. Tliat the law is justitied by analogy to the fishery laws of other nations; 

 and. 



That the application of this law to foreigners beyond the 3 mile limit is also justi- 

 fied by example and analogy. 



From 3. That the law, and more especially in its application to foreigners beyond 

 the 3-mile limit, is furtlier justified by analogy of other extra-territorial laws not 

 dealing with fisheries. 



1128 Then the scheme of consideration of these cases is explained : 



It is proposed to demonstrate in the following Argument thatthese premises are not 

 well founded, and that the position assumed by the United States is untenable. 



With regard to the argument from the practice of other nations, or from analogy 

 to the practice of other nations, it is submitted that the following propositions can 

 alone be maintained. 



To warrant any exceptional departure from the principles commonly accepted by 

 all nations as part of the law of nations, it is essential that there should be an agree- 

 ment between all : 



J. As to the sufficiency of the causes calling for such exceptional legislation. 



