"Then my friend proceeds: "In their strictly legal character as statutes, this is true. No authority need have been produced on that point. But the distinction has already been pointed out, which attends the operation of such enactments for such purposes. Within the territory where they prevail, and upon its subjects, they are binding as statutes, whether reasonable and necessary or not.' "That is true. Then he goes on to say 'without;' that is to say, outside the territory: "Without, they become defensive regulations, which if they are reasonable and necessary for the defense of a national interest or right, will be submitted to by other nations, and if not, may be enforced by the government at its discretion. "I need not say, therefore, that my friend's proposition consists of two branches-first of all, that a defensive regulation which is reasonable and necessary will be submitted to; secondly, that if it is not submitted to, the nation has, in order to compel assent, the resort to force alone-which is war. * Is there any precedent in any book of authority or in any international controversy in which a statute assuming to exercise authority over a territorial area has ever been regarded as a protective or self-defensive regulation? * * Nay, I will suggest further that the very idea of defensive regulation, or defensive act, or self-preservative act, repels the idea of cut and dried, formulated rules. * * "Take, again, the pursuit of vessels out of the territorial waters, but which have committed an offense against munici pal law within territorial waters-which is a case which my learned friend and myself (and I have no doubt my learned friends on the other side) have had frequent occasion to consider. Here, again, there is a general consent on the part of nations to the action of a state pursuing a vessel under such circumstances, out of its territorial waters and on to the high sea. "Senator MORGAN. You mean a consent by acquiescence? "Sir CHARLES RUSSELL. A consent by acquiescence. "The PRESIDENT. And not in every case? *** * * "Sir CHARLES RUSSELL. No; certainly not in every case. I will state-although not perhaps exhaustively- some of the leading conditions. As to that, it must be a hot pursuit, it must be immediate, and it must be within limits of moderation. In other words, we are still considering the character of the act which is not defined by international law, which is not a strict right by international law, but which is something which nations will stand by and see done, and not interpose if they think that the particular person has been endeavoring to commit a fraud against the laws of a friendly power. "Senator MORGAN. That relates to the morality of the act. "Sir CHARLES RUSSELL. To some extent, undoubtedly. The particular nation would undoubtedly be guided in its acquiescence or nonacquiescence according to its view of the morality or immorality of the particular conduct pursued-according to its view of the justice or injustice, reasonableness or unreasonableness, of the particular law. But I submit that it has never been suggested, still less agreed to by nations, that a particular power may judge for itself of the inconvenience it is suffering from the action of another power on the high seas, and put down that action with a high hand. Any such general proposition is unsound. * And the restricted proposition which we state, and by which we stand, is, that in such a case as the present, where there was no such instant overwhelming necessity of self defense, where there was time for device of means, where there was time for deliberation, where there was time for diplomatic expostulation and representation, that it is idle to try to treat this case as a case of necessary self defense or self-preservation. For be it recollected that beyond the fact of the legislation, which was professedly a territorial legislation, and a territorial legislation only: and beyond the fact of the seizures, which were made upon the basis of the assertion of that territorial legislation, there was, before these seizures began, no representation made to Great Britain by the United States that she regarded this as a matter of national interest by which, right or wrong, they were determined to stand. And up to the present time even there has been no such representation. "I may be asked, finally, May there not be cases in which, although it may not be possible to formulate the interests of a nation under any recognized head of law, municipally or internationally regarded: yet may there not be cases in which there may be great interests of a nation which yet call for and morally justify that nation in acting, and acting in assertion of those interests and in defense of them? Yes; there are such cases; but what are they? They are cases which rest upon the very same principle upon which nations have been driven, sometimes justly, sometimes unjustly, to defend territory which they have acquired, or to acquire territory in which they have by international law no right, but which, either in pursuit of a great ambition, or in the gratification of racial antipathy, or under the influence of the ambition of a great potentate, they choose to think is necessary for the well-being and safety of the nation. But that is not international law, or international right. That is war, and is defended as war, and justified as war alone. "And I do not hesitate, Mr. President, to follow out this illustration to its conclusion. I do not hesitate to take the concrete case of these seals. It would be remarkable if they did it; they would be very unwise if they did it-extremely foolish if they did it-if I may respectfully say so. But the United States might choose to say: We regard the interests of fur sealing as of so great a magnitude, as of so much importance to the well-being of our great community, as so important to the advancing interests of civilization the world over, that we will assert, right or wrong, our claim against the world to protect the fur seals in Behring Sea, or miles away from the Behring Sea. "But that would be war. "And there is another side to the question. Great Britain might choose to say: We consider the interests involved in this question as very great and very important-not merely to the interests of the Canadians, to the interests of a rising colony; but in view of the broader and greater principle which we conceive to be involved, the interference with the equality of all nations on the high sea, the attempt by one nation to usurp special privileges and special powers on the high sea. We consider that question to be of so great importance that we will defend it by force. "But that, again, is war." Authorities cited by the United States. Having discussed the right alleged to preExamination of the vent by acts of force on the high seas interference with the sealing industry on the Pribilof Islands, Sir Charles Russell proceeded to examine the authorities cited by counsel for the United States in support of that position. The first case was that of Amelia Island. As stated in the Argument of the United States, this island, which then belonged to Spain, was seized in 1817 by a "band of buccaneers," who, "in the name of" certain "insurgent" Spanish colonies, "preyed indiscriminately on the commerce of Spain and of the United States;" and the "Spanish Government not being able or willing to drive them off, and the nuisance being one which required immediate action," President Monroe "directed that a vessel of war should proceed to the island and expel the marauders, destroying their works and vessels." Upon the mere statement of the case, said Sir Charles Russell, it appeared that the act in question was in the nature of a belligerent act, (Baron de Courcel suggested that it "was rather an act of military execution than of belligerency,") directed to putting down persons who were mere adventurers, assuming without authority to exercise jurisdiction, and who were committing what might be called acts of land piracy. The next case was that of the steamer Caroline. This was the case of a vessel in the service of persons who were acting in sympathy with a rebellion in Canada; and while she was lying on the American side of the Niagara River the Canadian authorities, said Sir Charles Russell, "sent down an armed force, took possession of the vessel, and being unable to take her away, they destroyed her as an engine of offense directed against" Canada. Mr. Webster, discussing the case as Secretary of State, said: Under those circumstances, and under those immediately connected with the transaction itself, it will be for Her Majesty's government to show upon what state of facts and what rules of international law the destruction of the Caroline is to be defended. It will be for that government to show a necessity of self defense, instant, overwhelming, leaving no choice of means and no moment for deliberation." The next case cited was that of the destruction of the fort on the Appalachicola River a case," said Sir Charles Russell, "shortly stated, of putting down a band of marauders." The next case was that of the bombardment of Greytown. As it was stated by President Pierce in a message to Congress, a band of adventurers, "at first pretending to act as the subjects of the fictitious sovereign of the Mosquito Indians," but subsequently "repudiating the control of any power whatever" and declaring themselves "an independent sovereign state," took possession of Greytown, on the interoceanic transit route, "in open defiance of the state or states of Central America." Subsequently they attempted to demolish the establishment of the American Transit Company at Punta Arenas, but in this design were defeated by the interposition of a United States man-of-war. Various acts of predatory violence were alleged against them, and President Pierce, in justification of the bombardment, declared that the "pretended community" was "in fact a marauding establishment too dangerous to be disregarded, and too guilty to pass unpunished, and yet incapable of being treated in any other way than as a piratical resort of outlaws, or a camp of savages, depredating on emigrant trains or caravans and the frontier settlements of civilized states." "The bearing of this illustration," said Sir Charles Russell, "upon the question of seizing and confiscating a ship because it caught or was about to catch a seal, half a dozen or a dozen seals—I suppose the number makes no difference—seems somewhat remote." The argument of the United States also referred to the orders in council of 1809. This was, said Sir Charles Russell, “touching on a very sore subject,” though its soreness had been somewhat mitigated by time. One great power was at war, practically, with a combination of other European powers. The Emperor Napoleon had prohibited British commerce with certain ports and, as a retaliatory measure of war, the British orders in council were issued. It was "act against act, the powers were involved in a struggle for mastery, each doing what it could to minimize the enemy's powers of resistance and attack. And this, again, was war." Con * tinuing, Sir Charles Russell said: "Now, Mr. President, I come to a reference on page 155 [of the United States Argument] which is of quite a different character, introduced here strangely out of its order as it seems to me. It is a statement, and, as we conceive, an entirely misleading statement as to the views asserted by Great Britain in relation to rights of fishery off the coast of Newfoundland and Nova Scotia. We should be quite content to have the law which applies and exists, and the rights that are claimed in respect of the fisheries of Newfoundland and Nova Scotia, applied to the controversy which we are here engaged upon. As a matter of fact, for years upon the banks of Newfoundland, and without any question, outside the territorial limit, the fishermen of France, of the United States, of Canada, and of Great Britain are to be found pursuing their calling. * * * There were certain treaty rights, but that is ancient history. * Of course, when the United States became an independent power, one of the family of nations, it would have, in virtue of its sovereignty, the right to claim the free use of the high seas; but the point is this: that, from 1783 down through the whole of this negotiation, Great Britain has never asserted, and the United States has never alleged that she was asserting, that the right of fishery in the non-territorial waters was not a right that belonged to every independent nation. That is the point. "Senator MORGAN. Do you mean she has abandoned it since 1783? * "Sir CHARLES RUSSELL. I do not know that that would be appropriate language. So far as I have read the history of it, there was no assertion of it: certainly not since 1783. First of all, the Treaty of 1783 shows it, as it seems to me; but here is the official statement: * "In 1815 Lord Bathurst's letter to the United States Minister says: “But the rights acknowleged by the treaty of 1783 are not only distinguishable from the liberties conceded by the same treaty and the foundation upon which they stand, but they are chiefly distinguished in the treaty of 1783 itself. In the third article Great Britain acknowl edges the right of the United States to take fish on the banks of Newfoundland and other places from which Great Britain has no right to exclude an independent nation, but they are to have the liberty to cure and dry them at certain unsettled places within His Majesty's territory.' "I think, even if that right was asserted at some earlier period, Senator Morgan will see that that is a clear abandonment. "I leave this branch of the subject by expressing my agree5627-57 |