ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 115 



ponement which an exnmiuation of legal authorities from Ulpian to Phillimoie and 

 Kent would involve. He finds his own vit-ws well expressed by Mr. Phelps, our late 

 minister to England, when, after failing to secure a just arrangement with Great 

 Britain touching the seal lialieries, he wrote the following in his closing communi- 

 cation to his own Goverument, Sepremher 12, 1S88: 



"Much learning has been expended upon the discussion of the abstract question of 

 the right of mare claiistim. I do not conceive it to be applicable to the present case. 



" flere is a valuable fishery, and a large and, if properly managed, permanent 

 industry, the property of the nations on whose shores it isearried on. It is pro])Osed 

 hj the colony of a foieign nation, in defiance of the joint remonstrance of all the 

 countries interested, to destroy this business by the indiscriminate slaughter and 

 extermination of the animals in question, in the open neighboring se;i, during the 

 period of gestation, when the common dictates of humanity ought to prote(;t them, 

 were there no interest at all involved. And it is suggested that we are prevented 

 from defending ourselves against such depredations because the sea at a certain dis- 

 tance from the coast is free. 



"The same line of argument would take under its protection piracy and the slave 

 trade when prosecuted in the open sea, or would justify one nation in destroying the 

 commerce of another by placing dangerous olistructious and derelicts in the open sea 

 near its coasts. There are many things that can not be allowed to be done on the 

 open sea with impunity, and against which every sea is nuire clausum; and the right 

 of self-defense as to person and property prevails there as fnlly as elsewhere. If the 

 fish upon Canadian coasts could be destroyed by scattering poison in the open sea 

 adjacent witli some small profit to those engaged in it, would Canada, upon the just 

 principles of international law, be held defenseless in such a case? Yet that jjrocess 

 would be no more destructive, inhuman, and wanton than this. 



" If precedents are ■ anting for a defense so necessary and so proper, it is because 

 precedents for such a course of conduct are likewise unknown. The best interna- 

 tional law has arisen from precedents that have been established when the just occa- 

 sion for them arose, undeterred by the discussion of abstract and inadequate rules." 



Lord SalisburjMn a note subsequent to this, on February 21st, 1891, 

 again attempted to impute to Mr. Blaine a reliance, and a sole reliance, 

 on Kussian pretentious, instead of upon a princii)Ie of property right. 

 That will be found on page 290. He says in a paragraph near the bot- 

 tom of the page: 



The claim of the United States to prevent the exercise of the seal fishery by other 

 nations in Behring Sea rests now exclusively upon the interest which by purchase 

 they possess in a ukase issued by the Emperor Alexander I, in the year i'HjII, which 

 prohibits foreign vessels from approaching within 100 Italian miles of the coasts and 

 islands then belonging to Russia in Behring Sea. It is not, as I umlerstaud, con- 

 tended that the Knssian (Government, at the time of the issue of this ukase, possessed 

 any inherent right to enforce such a prohibition, or acquired by the act of issuing it 

 any claims over the open sea beyond thet rritorial limit of 3 miles which they would 

 not otherwise have possesse<l. But it is said that this prohibition, worthless in itself, 

 acquired validity and force against the British Government because that Govern- 

 ment can be shown to have acce])ted its provisions. The ukase was a mere usurpa- 

 tion ; but it is said that it was converted into a valid international law, as against 

 the British Government, by the admission of that Government itself. 



Now Lord Salisbury could not, I think, fairly, with the corresjiond- 

 ence of Mr. Blaine before him, which I have already read, imjiute to 

 the United States Government a sole reliance upon a jurisdiction 

 asserted to have been acquired by Russia; but he attempts to do it 

 there, and is very sharply corrected by Mr. Blaine in a subsequent note 

 of April 14, 1891, which will be found on page 295. I read from page 298 : 



In the opinion of the President, Lord Salisbury is wholly and strangely in error in 

 making the following statement: 



" Nur do they [the advisers of the President] rely, as a justification for the seizure 

 of British shijjs in the o])en sea, upon the contention that the interests of the seal 

 fisheries give to the United States Government any right for that purpose which, 

 according to international law, it would not otherwise 7>os8ess." 



The Government of the United States has steadily held just the reverse of the 

 position which Lord Salisbury has iini>nted to it. It holds that the ownership 

 of the islands upon which the seals bree<l, that the habit of the seals in regnlarly 

 resorting thither and rearing their young thereon, that their going out from the 

 islands in search of food and regularly returning thereto, and all the facts and inci- 



