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 Presi dent 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 resist ance and attack. And this, again, was war." Con

tinning, 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 acknowledges 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

ment with the opinion stated on page 157 of the United States Argument, that there can not be one international law for the Atlantic, and one for the Pacific, and I agree the law is the same for each-that outside the territorial limits there is an unrestricted right and liberty for all mankind to take what it can from the bosom of the sea.

"The next subject that is dealt with as to self-preservation in time of peace is the law of quarantine. The British statute is the 6th of George the Fourth, chapter 78, passed in 1825. * * First of all, the act deals with vessels coming to the shores of a particular nation in the same way as the hovering acts. It deals, therefore, solely with vessels coming to British ports. Vessels liable to quarantine, that is, vessels or receiving boats coming to United Kingdom ports, are to hoist quarantine signals on meeting any other vessel at sea or when they are within two leagues of the United Kingdom coast. Signals are to be continued so long as the meeting vessel continues in sight, or the vessel itself remains within two leagues of the coast of the United Kingdom, and until the vessel shall have arrived in a United Kingdom port; and if it fails to do that there is a penalty of £100 fixed for it; and that applies to all ships. How is this penalty to be recovered? It never can touch any vessel that does not come to the port, because, under section 35, the only remedy for the recovery of the penalty is by proceeding in a local court against the captain of the vessel.

"Further, vessels having infectious disease on board are required to hoist a signal when they meet any other vessel at sea or are within two leagues of the United Kingdom coast; and the signal is to remain hoisted so long as the meeting vessel remains in sight, or the vessel itself remains within two leagues of the United Kingdom coast while so in sight or within such distance, until it shall have arrived at the port where it has to perform quarantine. This is the whole of the statute, I think. I am quite unable to appreciate what is in my friend's mind about this. Does he suggest that, under this law, we could go outside territorial waters and seize the shipfor instance, a ship that was passing through the British Channei, beyond the three mile limit, on its way to some European port? Does he suggest that we could under this statute go outside the territorial limits and seize that ship, because she had not hoisted a signal? Such a thing would be impossible. The statute creates a penalty, a penalty only recoverable against the captain, and only recoverable in a municipal court, when the ship arrives within the territory."

The Claim of Impressment.

Sir Charles Russell took issue with Mr. Phelps's contention that the right of visitation and search was not confined to a time of war, as well as with the latter's statement, made with reference to the British claim of impressment: "Though the war grew out