118 OEAL ARGUMENT OF JAMES C. CARTER, ESQ. 



Lord Stowdl to Lord MelvUJe. 



Grafton Stkket, Loxdox, Dcccmler S8, 1821. 



My Dear Lord: I liare perused tliese papers, aiul it appears to me to be unsafe to 

 proceed to any controversial discussion of the proposed liegiilations, till it is shown 

 that they issue from a competent authority founded upon an acknowledued title of 

 territorial and exclusive possession of the portions of the <;lobe to which they relate. 

 I aiu myself too slightly acquainted with the facts regarding such possession (how 

 originally ac(|uired and how subsequently enjoyed) to be enal)led to say that upon 

 undisputed principles snch a possession exists. It is perl'cctly clear from these 

 Regulations that it has not hitherto been exclusive in the extent in which it is now 

 claimed; for they are framed for the very purpose of putting an end to foreign 

 intercourses of traffic therein, which they denominate illicit but which they admit 

 existed de facto. 



The territories claimed are of different species — islands — portions of the continent — 

 and large portions of the sea adjoining. 



I know too little of the history of their connection with either islands or continents 

 to say with confidence that sucli a possession has in this case been acquired. I con- 

 tent myself with remarking that such possession does not ap]iear in the opinion and 

 practice of States to be founded exactly upon the sanic ]niuciples in the cases of 

 islands and continents. In that of islands, discovery alone has usually been held 

 sufilicient to constitute a title. Not so in the case of continents. In the case of 

 the South American Continent the Spaniards and Portuguese resorted to grants from 

 an authority which in that age was universally respected, and continued in respect 

 till subsequent jjosscssion had confirmed their title. But I think that it has not been 

 generally held, and cnnnot be maintained that the mere discovery of a coast gives 

 the right to tlie exclusive possession of a whole extensive continent to which it 

 belongs, and less to the seas that adjoin to a very considerable extent of distance. 

 An undisputed exercise of sovereignty over a large tract of such a continent and for 

 a long tract of time would be requisite for such purposes. I am too ignorant of par- 

 ticular facts to say Iiow far such principles are justly applicable to such cases. I 

 observe that by these Regulations the commerce in these islands, continents and 

 adjoining seas is declared to have been granted exclusively to Russian subjects; who 

 the grantor is, is not expressly declared. If, as is probable, the Autocrat of Russia 

 is meant, the inquiry then reverts to the question respecting the foundation of such 

 an authority, and thinking that that question must be first disposed of, I content 

 myself with observing upon the Regulations tlieinselves that they are carried to an 

 extent that appears very unmeasured and insuiiportable. 



I have, etc., ■ Stowell. 



I read tliat letter for the purpose of showing two thing's: First, the 

 views of a distinguished jurist of that day upon the question of what 

 right is acquired by the discovery of new regions, and what acts were 

 necessary for the ])urpose of really constituting property in them; and 

 next for the purpose of showing that Lord Stowell gathered at once 

 from the face of these regulations that they were not designed as 

 assuming sovereign jurisdiction over the sea, but were defensive regu- 

 lations for the purpose of protecting commerce and the industries of a 

 region over which it was assumed that Enssia had sovereign control; 

 and he, as you will perceive, rests the conclusion as to the validity 

 of these regulations upon the completeness and perlectness of the sover- 

 eignty of the nation which had issued them over the shore. Right 

 tliere I may also quote an opinion by Sir Eobert Phillimore, evidently 

 in reference to this very territory; because I think at an early period 

 this whole territory, including Alaska, was vaguely understood by the 

 world in general to be end)raced under the term "Oregon". The 

 passage from Sir Robert Phillimore's book, which I wish to refer to, is 

 contained on page 39 of our Argument. He says (Int. Law, vol. 1, 

 pp. 259, 260) : 



A similar settlement was founded by the British and Russian Fur Companies in 

 North Amei'ica. 



The chief portion of the Oregon Territory is valuable solely for the fur-bearing 

 animals which it pioduces. Various establishments in different ])art8 of this terri- 

 tory organized a system for securing the preservation of these animals, and exercised 

 for these iiurposes a control over the native population. This was rightly contended 



