neighborhood of the colonies of another country, for the purpose of engaging in illicit trade with such colonies. In order to enforce such prohibitions, it was necessary that regulations should be adopted prohibiting vessels from hovering off the coasts.

"It is, however, true-and a distinction is to be noticed here that regulations designed to govern the exercise of this right of self defense sometimes go a step further than the mere making of provision for the seizure and capture of a vessel on the high seas, when she is actually engaged in an offense against the laws of the nation which undertakes the seizure. They sometimes go a step further than that, and make the conduct of a vessel, if it justifies a suspicion that she intends illicit or prohibited trade, or intends any other violation of the laws of the nation adopting the regulation, itself an offense, although, in point of fact, it might be true that the vessel was not actually engaged in such violation.

"When regulations of this character go to that length, they go beyond the mere right of employing force, and enter the field of legislation, and assume a limited and qualified right to make laws operative upon the high seas. That is the nature of regulations when they undertake to make acts offenses which are not, in their nature, necessarily offenses. If a vessel is actually engaged in an attempt to carry on a prohibited trade with the colony of a nation, that act is, necessarily, in itself a violation of the rights of that nation; but if she is not so engaged, but happens to be involved in circumstances which throw suspicion upon the nature of the enterprise in which she is engaged, and justify a suspicion that she is really contemplating a prohibited trade, if there is a regulation which makes that conduct, of itself, a crime, that, we must admit, is a piece of legislation, and assumes the right-a limited right, it is true-of passing laws operative upon the high seas.

Extent of United
States' Claim.

"All the doubt and all the controversy which have arisen in reference to this question of the exercise by a nation of the right of self-defense upon the high seas turns upon the validity of regulations of that sort, regulations which go beyond the mere shaping of the right of self-defense and prescribing how it shall be exercised, and undertake to create distinct ofienses. The power of a nation to do that has been disputed, and may perhaps be still the subject of dispute. It will be observed that this exercise, even of the right of legislation in the cases which I have mentioned, does not involve an assumption of a general authority to legislate over the seas. It is limited strictly to the case of self-defense, and is calculated to provide means by which that right of self-defense may be more efficiently exerted; but, nevertheless, it does partake of the quality of legislation. Whether it is valid or not, has been disputed.

"Let me say, however, that the United States, upon this argument, avoids all controversy of that sort. We do not ask

for the application of any doctrine, even although we might, to the effect that we can establish any prohibited area on the high seas and exclude the vessels of other nations from it. We do not ask to have it determined that the United States has the right to say that the offense of pelagic sealing when committed by vessels of another nation is a crime for which we can punish the officers and crew of such vessel. That would be legislating for the high seas. We do not ask for a decision that the United States can make a law and enforce it, by which she could condemn a vessel that had been engaged at some past time in pelagic sealing, if the vessel was not so engaged at the time of seizure. The doctrine maintained by us simply amounts to this, that whenever a vessel is caught red-handed, flagrante delicto, in pelagic sealing, the Government of the United States has the right to seize her and capture her; that is to say, it has the right to employ necessary force for the purpose of protecting, in the only way in which it can protect, its property in the seals, or its property interest in the industry which it maintains upon the islands. That is the extent of our claim."

The oral argument of Sir Charles Russell Oral Argument of Sir opened with a summary of the positions of the Charles Russell. United States and a denial of any exclusive right of property, jurisdiction, or protection in the fur seals. Nevertheless, the discussion had, he declared, been "exceedingly interesting", mainly because of the "courage"-he would not say "audacity"-with which counsel for the United States had "propounded propositions of law which they affected to suggest were almost beyond question," but for which he hoped "to demonstrate there is no legal authority whatever." Among these, he referred to the proposition that, though property in seals as between individuals was not recognized by the municipal law of any civilized country, yet "international law" might be invoked to declare the property in the United States. In order to establish this position Mr. Carter The Nature of Inter- had, said Sir Charles Russell, put forward the national Law. "extraordinary proposition" that "the moral

law and the law of nature"-whatever the "law of nature" in this relation might mean-were "two terms interchangeable with international law." He therefore thought it desirable at the outset to state broadly what his government's conception of international law was. On this subject Sir Charles Russell

said:

"It may be admitted that all systems of law prevailing, I care not in what country, profess to be founded upon principles

of morality, and upon principles of justice. Does it follow from that that every principle of justice, as one nation or another may view it, or every principle of morality, as one nation or another may view it, forms part of international law? By no means. International law, properly so called, is only so much of the principles of morality and justice as the nations have agreed shall be part of those rules of conduct which shall govern their relations one with another. In other words, international law, as there exists no superior external power to impose it, rests upon the principle of consent. In the words of Grotius, Placuitne gentibus? is there the consent of nations?

*

*

* *

"The ideas as to morality of civilized countries do not progress pari passu. There are many things which, according to some states of society, justice requires, or morality requires, but which another state of society, which boasts of a proud civilization, declines to recognize. I think it is true to say that, except the United States of America, in this present day there is no considerable power in the world that stands out against a condemnation of privateering. Will the United States admit that because all these great powers concurred that makes international law? No. * * *

"As late as 1848, although the whole voice, I may say broadly, of humanity the world over has condemned the slave tradeand no country has gone further to make sacrifices in the same direction, to its credit be it said, than the United States-a judge of the high court in Great Britain, in the case of Buron v. Denman, expressly declared that slavery is not an offense against the law of nations, and that ownership in slaves is not forbidden by the law of nations. There is a curious comment made upon this proposition at page 7 of the written Argument of the United States. After referring to a decision in the same sense in the American courts, my learned friend, Mr. Carter, alluding to Chief Justice Marshall, says

"The Supreme Court of the United States, speaking through its greatest Chief Justice, was obliged to declare in a celebrated case that slavery, though contrary to the law of nature, was not contrary to the law of nations; and an English judge, no less illustrious, was obliged to make a like declaration. Perhaps the same question would in the present more humane time be otherwise determined.'

"No, sir, it would not. It could not, until nations have given their consent to its being treated as a crime against international law.

*

* *

"Now, side by side with this conception of the law of nations, there is going on in the world a gradual change and a gradual growth of opinion. * There may be opinions, or doctrines, or usages, which perhaps are making their way in the world, are perhaps appealing more or less successfully to the sympathy of thinkers in the world, which are not yet part of the law of nations, because nations have not consented to them. They are not the law of nations, but only the material out of which, it may be, at some future time some new principle of the

law of nations may be developed as the world thinks wise; and I point to this for the reason that my learned friend in the citations from international writers that he has made, and in a much larger number which are given but to which he did not refer, did not draw that distinction which must be drawn between those writers and authorities (I think erroneously called authorities) who deal with the subject with a view to discover the metaphysical grounds, the ethical reasons which may be advanced in support of this or that view, and those writers (much less interesting but much safer guides) who confine themselves to laying down what rules have in fact obtained the consent of nations. * * *

"The PRESIDENT. First, may I beg to put a question? You speak of international law as comprising the customs and usages of nations, on which different nations have agreed.

"I suppose you mean not only by written agreement, but also by right of usage?

"Sir CHARLES RUSSELL. Certainly. When I say 'to which they have agreed,' of course I mean not merely or necessarily by a formal or express or written agreement, but by any mode in which agreement may be manifested, by which the Tribunal may arrive at the conclusion that they have so agreed.

"Senator MORGAN. Including acquiescence?

"Sir CHARLES RUSSELL. Certainly. I use agreed' in that broad and general sense.

"Lord HANNEN. As a question of evidence?

"Sir CHARLES RUSSELL. As a question of evidence: the question always is, placuitne gentibus?”

The Question of Pelagic Sealing.

At this point Sir Charles Russell entered into a discussion of the uses and value of the fur seals, arguing that the skins were an article of luxury, which had been enjoyed in Europe for less than forty years; that the seal fisheries were not a prominent element of consideration in the purchase of Alaska by the United States; and that, as the seals are large consumers of food fishes, it might under certain circumstances be beneficial to mankind to kill them; and in this relation he referred to efforts to exterminate the hair seals in certain Danish waters, where they prey upon the salmon. The Case, the Counter Case, and the Arguments, of the United States had, he said, been full of denunciations of pelagic sealing. It had been "denounced as a crime and a great moral wrong-a little worse than murder, and almost as bad as piracy." He wished to examine the subject for a moment, and see whether there was not "pervading this style of argument the same kind of exaggeration" as was addressed to "the industry itself." He started with the "initial fact" that pelagic sealing was "the oldest pursuit of the

fur seal historically known." It was a pursuit followed by the aboriginal inhabitants along the coasts in question. And how stood the facts as to its effects? In every case which had been referred to of the evil caused by the destructive agencies of man as regarded seal rookeries in other parts of the world, "the cause of the extermination of the fur seal species was the indiscriminate slaughter upon land." He had been "unable to repress a smile" when reading the "beautifully descriptive” but "most imaginative" accounts in the literature of the United States, as to "the merits and blessings of killing on land." In this relation he referred to a statement in the report of the British commissioners' as to the "unnatural and destructive character" of the system of "driving" practiced on the Pribilof Islands; and he also contended that the evidence showed that the lessses of the islands had of late years "themselves been committing the grievous moral crime of killing females."

But, what was the relevance of the argument as to the wasteful character of pelagic sealing to the Case of the United States? Was it because the mode pursued by Canadian sealers was wasteful that they had no right? And had the United States an exclusive right, because their method was not wasteful? Did counsel for the United States admit that if the Canadians had, to use their formula, a means of shooting the seals which was not wasteful, they had the right to shoot them? At this point the following colloquy occurred:

"The PRESIDENT. That argument would perhaps affect rather the question of regulations.

"Sir CHARLES RUSSELL. You are anticipating exactly the

Counter Case of Great Britain, 261.

The meaning of the word "driving" is this: When the seals arrive at the islands the old bulls take possession of the females and with them occupy the rookeries, while the young bulls are compelled to "haul" off and occupy different ground. In order to avoid disturbance of the rookeries, the young bulls, commonly denominated "bachelors," from which the supply of skins is intended to be obtained, are then driven overland to the killing places, where a certain proportion is selected for killing, the remainder, consisting of bulls too young or too old or of females incidentally gathered up from the margins of the rookeries, being allowed to return to the water. The purport of the statement referred to by Sir Charles Russell was that, owing to the lack of the means of progression on land, many of the seals suffered permanent injury from driving, and that with the decrease in the number of "killable" males on the islands, the proportion of females included in the drives increased. The relation of driving to the diminution of the seal herd was one of the points of difference between the United States and British experts.