ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 97 



to exclude other nations from them — was that the nature of the preten- 

 sion set up? JS^ot at all. There was a j^rant to a private company of 

 the exclusive privilege of colonial trade to which Eussia had a perfect 

 title; and it was designed to prohibit any interference with that trade 

 by other nations. It is apparent on the face of it. It says: "We</tere- 

 fore interdict," that is, because we have made this grant, and for the 

 purpose of protecting such grant. Now, that interdiction may have 

 been reasonable or unreasonable; but the doctrine upon which it 

 was founded is justified, not only by the practice of nations, but by 

 every rule of international law, and it stands as good to-day as in that 

 time. I have said it may have been reasonable or unreasonable. I 

 may say that it was in the highest degree reasonable. You will remem- 

 ber the decision of Chief Justice Marshall, just read, that such an exclu- 

 sion of the vessels of a nation on a frequented coast, the general path- 

 way of commerce, would be unreasonable, and would not be submitted 

 to by other nations. It would interfere with their commerce too much. 

 But in a distant and remote sea, a larger exclusion might be justifiable. 

 For, what purpose could a vessel other than Kussian entering Bering 

 Sea in 1821 have? Whaling was at that time very little, if at all, car- 

 ried on. The probabilities were that if any vessel were found in those 

 seas it was for the purpose of engaging in trade connected with the 

 shores, and therelore the i)robability was that she was engaged in an 

 illicit trade. The very circumstance that she was in that Eussian Sea 

 was a suspicious circumstance, and justified her being treated as being 

 engaged in suspicious business. 



The President. You mean if the ship had been engaged in whaling? 



Mr, Carter. It would have applied undoubtedly to a vessel if her 

 object had been whaling. It was not the Intention of Russia to assume 

 general dominion over those seas. A vessel might be whaling and be 

 Avithin one hundred miles of the shore without exposing herself to any 

 suspicion of unjustifiable trade ; but whaling was substantially unknown 

 at that time. 



The President. Whaling is the first item mentioned. 



Mr. Carter. Yes. 



The President. You establish a difference between whaling and 

 fishing. 



Mr. Carter. I think the fair interpretation of that grant does not 

 include whaling. 



The President. But fishing in the open sea would not be inter- 

 dicted? 



Mr. Carter. I think the interdict is confined to what is done on the 

 coasts (quoting again): 



Sec. 1. — The pursuits of commerce, whalinu-, ami fishery, «tii(1 of all other indus- 

 try on all islands, ports, and oulfs including the whole of the northwest coast of 

 America, beginning from Behring's Straits to tlie 51° of northern latitude, also from 

 the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile 

 Islands from Behring's Straits to the South Cape of the Island of Urup, viz, to the 

 45'^ 50' northern latitude, is exclusively granted to Russian subjects. 



That is a grant to the exclusive pursuit of commerce, whaling, 

 fishery, and all other industries on all islands, ports, and gulfs. 



The President. The hundred-mile limit is for the hovering? 



Mr. Carter. The hundred-mile limit is for the purpose of prevent- 

 ing infractions. 



The President. But they must come to the coasts? 



Mr. Carter. The mere coming within one hundred miles would be 

 an infraction. But you must separate the grant from the measure of 

 protection which was contrived for the purpose of securing the grant. 

 B s, pt xii 7 



