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carried on by means of large vessels provided with perhaps a dozen or fifteen or more boats and a very large crew, which follow the seals off at sea, it may be hundreds of miles, capable of standing any weather and continuing on the sea for months." Mr. Carter also discussed the question of Property in the In- "the property which the United States Govdustry on the Pribernment asserts in the industry carried on by ilof Islands. it on the Pribilof Islands, irrespective of the question whether they have property in the seals or not." He assumed as facts that this industry was established and developed by Russia with care, labor, and expense; that it was not interfered with during the time of the Russian occupation; that the United States continued to carry it on "without interference until pelagic sealing was introduced;" that "they succeeded in securing the entire aunual increase of these animals and devoting it to the purposes of commerce without diminishing the stock, and that by means of this industry the stock of seals has been actually preserved." The industry thus established and carried on was, declared Mr. Carter, “unquestionably a full and perfect right"-a "lawful" and "useful" occupation-against which nothing was asserted but the alleged right of pelagic sealing, which was "in itself" a wrong. The right to the industry was founded on "a natural advantage peculiar to the spot," and it was a "national” industry, since it required for its conduct the establishment of rules and regulations which could be carried into effect only by the authority of a nation.

The Right to Protect the Industry.

The "national industry" thus created, Mr. Carter maintained that the nation had the right to protect against the attempts of the citizens of another nation, for their own temporary benefit, to come and break it up. In this relation he said:

"Let me illustrate that. I may assume that there are races of fishes which regularly visit a shore. They may not be the property of the owners of that shore, they may not be the property of the nation which holds dominion over that shore; nevertheless, it is possible by making rules and regulations to create an industry in them; and when that is done there is a thing, a creation, which that nation has a right to maintain against the attacks of the people of other nations.

"The PRESIDENT. That would create a right of protection over the species?

"Mr. CARTER. That is what I am arguing; it would give a

right of protection; the right of protection stands upon the industry which is created.

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"The PRESIDENT. Your argument goes to show that the right extends beyond the limits of the islands.

*

we

"Mr. CARTER. Yes; we have the right to carry on the industry upon the islands; and, having that right, when the carrying on of the industry is prevented by wrongful acts in other places, we have the right to protect ourselves by repressing those acts. Turning to the Argument * on the part of Great Britain, The case of Oyster, have it admitted here that it is competent Pearl and Coral Beds. to particular nations to assert for themselves the exclusive benefits of an industry connected with oyster beds, pearl-fishery beds, and coral reef beds, although they are out on the high seas beyond the territorial three-mile limit, and to assert that right against the citizens of other nations. * They say it is a property right to the bottom, and that it exists wherever the bottom may be occupied, and does not exist where the bottom can not be occupied. Well, that amounts to this, then, that wherever a nation can occupy the bottom, although outside the territorial limits, it may rightfully occupy it and exclude other nations from it. But how can you occupy the bottom of the sea? Well, you can occupy it only by taking such possession as is possible. You can buoy it where you can reach the bottom, and establish a naval force and exclude the citizens of other nations from it; and that is all the occupation of the bottom that you can effect. Now, that goes much further than the argument of the United States, no part of which supports a general right to thus occupy the sea outside the three-mile limit. If the right to establish the industry rest upon an ability to occupy the bottom, then you can establish one wherever you can reach bottom; and if you can establish it in one place, you can establish it in another. I do not suppose it is possible to defend any right like that over the high seas. I do not suppose it is possible to defend any such right as that over the fisheries of the seas. There must be some other principle which may be called into play.

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"These regulations are found in the cases of oyster beds, coral beds, beds where the pearl fishery is carried on, beds which are found in a certain proximity to the coast of a coun try, and which can be worked more conveniently by the citizens of that country than any other. Those are the cases

in which it can be done, and in those cases it is perfectly justifiable. It is where there is a natural advantage, within a certain proximity to the coast of a particular nation, which it can turn to account better than the citizens of any other nation. In such cases, if the particular nation is permitted to establish and carry out a system of national regulation, it may furnish a reg. ular, constant supply of a product of the seas for the uses of 5627-55

mankind, which product, if it were thrown open to the whole world, would be destroyed. *

"In the protecting of industries of that sort, does the nation extend its jurisdiction over those places? Does it make them a part of its territory? Certainly not.

All

that it is necessary for it to do is to enforce such regulations on those places as are effective and sufficient to protect the right from invasion by the citizens of other nations.

If the coral beds can be protected from invasion far out at sea, if the pearl beds can be protected from invasion by municipal regulations operative upon the sea, why should not this fishery be protected in the like way? It requires no greater exercise of authority. It requires no straining whatever of the ordinary rules which govern the conduct of nations in respect to their interests. It is a more illustrative instance, by far, than the case of the coral beds, or the pearl beds, or the oyster beds; a more illustrative instance for the application of the principle that the nation may protect the industry which has thus been created.

"To make it entirely analogous, if these seals were in some manner attached to the bottom, if they were in the habit of congregating at some particular place on the bottom of the sea, then, according to the doctine which seems to be made the foundation of the right by our friends on the other side, the United States would have a right to go out and take possession of that bottom, incorporate it into its own territory, and treat it as a part of its own nationality.

"I am sure we assert no such right as that. We do not ask to go to any such length as that. All we ask is the right to carry on the industry on our own admitted soil, and to protect it from being broken up by repressing acts upon the high seas which are in themselves essential wrongs."

Having discussed the claim of a right to proThe Nature of the tect the sealing industry established on the Protection Required. Pribilof Islands, Mr. Carter proceeded to consider what "action" the United States might take for that purpose. Protection could not, he said, be afforded by legislation, since legislative power did not extend over the sea; but it might be afforded "by the exercise of executive power-an exercise of natural power-an exercise of what you may call force.” The nation had the right to protect the industry, "just as any individual has a right to protect his property, where there are no other means, that is, by force." Pursuing this subject, Mr. Carter said:

"Individuals can defend their rights and property by the employment of force to a certain extent. If a man attacks me, I may resist him and subdue him and use violence upon him

for that purpose; and I may go as far as it is necessary for that purpose; not further. Whatever force it is necessary to employ to defend myself, I may employ against him. So if a man comes upon my property, I may remove him, if I have to carry him five miles; and I may employ as much force as is necessary for the purpose of removing him from my property; but I can not employ any more force than is necessary.

What can nations do? They can only use this same sort of self-defensive power that an individual does. This is all. That they can use under all circumstances, limited, however, by the same rules and by the same boundaries which limit it in the case of an individual―necessity.

"We may make that very plain and palpable by turning to admitted instances of the exercise of it, and take for that purpose what are commonly called belligerent rights. Here is a nation engaged in war. It blockades the enemy's ports. The ship of a neutral nation, friendly to both parties, undertakes to enter that blockaded port, and the belligerent that has established the blockade captures her by an exercise of force, carries her into one of his own ports, and confiscates her, and sells her.

* *

*

"That is not legislative power. It was not exerted by reason of any extension of the sovereignty of the nation over the seas. It was simply an exercise of self-defensive power, standing upon the principle of necessity, and limited by the principle of necessity. You can enter even the territory of a friendly state, if it is necessary for the purpose of protecting yourself against your adversary; and even when there is no condition of war. They had a rebellion in Canada some years ago, and a vessel was fitted out by persons making use of the soil of the United States for the purpose of aiding the rebellion, as it was called. A British military force crossed the Niagara River, captured that vessel in the territory of the United States-not on the high seas, but in the territory of the United States.

"Senator MORGAN. You refer to the Caroline?

"Mr. CARTER. I refer to the case of the Caroline.

"A celebrated instance in history was the seizure by Great Britain of the Danish fleet in the harbor of Copenhagen. There was the fleet of a friendly power. There was absolute peace between Great Britain and Denmark; but Great Britain was apprehensive that that fleet would fall into the possession of France, and the seizure was defended by her ablest statesmen on the ground of necessity.

"The PRESIDENT. Do you not think that all of that takes us out of this sphere of law and right?

"Mr. CARTER. Not at all. We are right within the sphere of law and right.

"The PRESIDENT. I do not think the whole world generally considers it so.

"Mr. CARTER. We are right within the sphere of law; and

the exercise of these acts of self-defensive authority-the extent to which they may go, the necessities which create them, how far the necessities extend-constitute a great chapter in international law, and are all dealt with, all their limitations defined, and the principle which governs them laid down.

Self-Defense in Time of Peace.

"What is said upon the other side? They agree that all these things may be done. What do they say? Well, they say that they can not be done in time of peace; that you can not defend yourself by the exercise of force on the high seas in time of peace. There is no substance in that. The right exists in time of peace just as well. Whenever the necessity arises, the right arises, whether it be in time of war or time of peace. It may arise in peace just as much as in war. In point of fact, the principal occasions, and the most frequent occasions, for the exercise of this right happen to occur in time of war, and, therefore, the instances in which it is exercised, and the rules which govern its exercise, are found in belligerent conditions far more than in conditions of peace. The absence of the occasion is the reason why we find less discussion of these rights in time of peace, and a want of rules for regulating them; but, nevertheless, the occasion may arise, and when it does arise, then the power must be put in force.

tion.

"Now, let me call the attention of the TriRevenue Legisla- bunal to occasions when it does arise in times of peace. In the first place, let me allude to those municipal regulations which are devised by different states for the purpose of protecting their revenue. I before remarked that the protection of the revenue of a nation could not well be effective unless the conduct of foreign vessels could be controlled at a greater distance than three miles from the . land. If a vessel intending a breach of the revenue laws of a nation had the power to approach its shores to a distance of three miles from the land, and wait outside of that limit for a favorable opportunity to slip in, or to unload its cargo into another vessel sent clandestinely from the shore, it might at all times evade its revenue laws; and, consequently, most nations— certainly Great Britain and the United States-Great Britain from a very early period and the United States almost from the period of her independence-have enacted laws prohibiting vessels from transshipping goods or hovering at a distance much greater than that of three miles-three or four leagues from the shore being the area commonly fixed upon. What is the penalty which they denounce for that purpose? The penalty is capture and confiscation. Does that penalty, and the enforcement of that penalty, involve an extension of jurisdietion out to that limit of three or four leagues? Certainly not. It is an act of self-defense. It is an executive act, designed to protect the revenue interests of the country. So, also, in the case of colonial trade, a similar device was formerly adopted for the purpose of preventing the approach of vessels in the

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