ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 51 



The importance of the subject necessitated a reference to the Government of Can- 

 ada, whose reply has only recently reached Her Majesty's Government. The nego- 

 tiations whicli have taken place between Mr. Blaine and yourself afford strong reason 

 to hope that the ditticulties attending this question are in a fair way towards an 

 adjustment which will be satisfactory to l^otli Governments. I think it right, how- 

 ever, to place on record, as hrielly as i)o.ssible, the views of Her Majesty's Govern- 

 ment on the principal arguments brought forward on behalf of the United States. 



Mr. Blaine's note defends the acts complained of by Her Majesty's Government on 

 the following grounds : 



1) That "the Canadian vessels arrested and detained in the Behring Sea were 

 engaged in a pursuit that is in itself coH/ra bonos vioyes — a pursuit which of necessity 

 involves a serious and permanent injury to the rights of the Government and peo})le 

 of the United States". 



2) That the fisheries had been in the undisturbed possession and under the 

 exclusive control of Russia from their discovery until the cession of Alaska to the 

 United States in 18H7, and that from this date onwards until 1886 they had also 

 remained in the undisturbed possession of the United States Government. 



3) That it is a fact now held beyond denial or doubt that the tailing of seals in the 

 open sea rapidly leads to the extinction of the species, and that therefore nations 

 not possessing the territory upon which seals can increase their numbers by natural 

 growth should refrain i'rom the slaughter of them in the open sea. 



Mr. Blaine further argues .that the law of the sea and the liberty which it confers 

 do not justiiy acts which are immoral in themselves, and which inevitably tend to 

 results against the interests and against the welfare of mankind ; and he proceeds to 

 justify the forcible resistance of the United States Government by the necessity of 

 defending not only their own traditional and long-established rights, but also the 

 rights of good morals and of good government the world over. 



He declares that while the United States Avill not withhold from any nation the 

 privileges which they demanded for themselves, Avhen Alaska was part of the Rus- 

 sian Empire, they are not disposed to exercise in the possessions acquired i'rom Russia 

 any less power or authority than they were willing to concede to the Imperial (tov- 

 ernmeutof Russia when its sovereignty extended overthem. He claimsfrom friendly 

 nations a recognition of the same rights and privileges on the lands and in the waters 

 of Alaska which the same friendly nations always conceded to the Emi)ire of Russia, 



With regard to the first of these arguments, namely, that the seizure of the Cana- 

 dian vessels in the Behring's Sea was justified by the fact that they were "engaged 

 in a pursuit that is in itself contra honos mores — a pursuit which of necessity involves 

 a serious and permanent injury to the rights of the Government and people of the 

 United States", it is obvious that two questions are involved: fii'st, whether the 

 pursuit and killing of fur-seals in certain parts of the oiien sea is, from the point of 

 view of international morality, an offense co«/;-a honos mores; and secondly, whether, 

 if such be the case, this fact justifies the seizure on the high seas and subsequent 

 confiscation in time of peace of the private vessels of a friendly nation. 



It is an axiom of inteinatiounl maritime law that such action is only admissible 

 in the case of piracy or in pursuance of special international agreement. This prin- 

 ciple has been universally admitted by jurists, and was very distinctly laid down l>y 

 President Tyler in his special message to Congress, dated the 27th February, 1843, 

 when, after acknowledging the right to detain and search a vessel on suspicion of 

 piracy, he goes on to say: "With this single exception, no nation has, in time of 

 peace, any authority to detain the ships of another upon the high seas, on any pre- 

 text whatever, outside the territorial jurisdiction". 



Now, the pursuit of seals in the open sea, under whatever circumstances, has never 

 hitherto been considered as piracy by any civilized state. Nor, even if the I'nited 

 States had gone so far as to make the killing of fur-seals piracy by their nuinicipal 

 law, would this have justified them in ])unisiiing offenses against such law committed 

 by any persons other than their own citizens outside the territorial jurisdiction of 

 the United States. 



In the case of the slave trade, a practice which the civilized world has agreed to 

 look upon with abhorrence, the right of arresting the vessels of another country is 

 exercis<^d only by special international agreement, and no one government has been 

 allowed that general control of morals in this respect which Mr. Blaine claims on 

 behalf of the United StatjiS in regard to seal-hunting. 



But Her Majesty's Government must question whether this pursuit can of itself be 

 regarded as contra honos mores, unless and until, for s])ecial reasons, it has been agreed 

 by international arrangement to forbid it. Fur-seals are indisputably animals /'erce 

 7i(tturw, and these have universally been regarded by jurists as res nxlliiis until they 

 are caught; no person, therefore, can have property in them until he has actually 

 reduced them into possession by capture. 



It requires something more than a nun-e declaration that the Government or citi- 

 zens of the United States, or cven other countries interested in tlie seal trade, are 

 losers by a certain course of i)roceeding, to render that coui'se an ixumoral one. 



