Having discussed the question of property The Sealing Industry. in seals in its various aspects, Sir Charles Russell said that he came to "the last ground on which the pretensions of the United States are based in argument"-the proposition which Mr. Phelps had specially taken under his protection-namely, that pelagic sealing interfered with a legal right in the industry, as it had been called, said to be carried on on the Pribilof Islands. On this sub ject, the argument of Sir Charles Russell ran as follows: "I have to assume, and the proposition that my learned friend advanced assumes, that there is no property in the seal, and no property in the seal herd. I have also a right to assume that the general right of fishing acknowledged by the treaty of 1824 between Russia and the United States, and the same general right of fishing acknowledged by the treaty of 1825 between Russia and Great Britain, did not except any living thing in the sea. I have further to assume that that was but a recognition, in the case of the waters of Behring Sea and the other waters involved in the controversy which led up to those treaties, of the general right of all mankind to fish in the sea and to take therefrom outside territorial waters whatever they are able to capture. These are the hypotheses, these are the data, in view of which this proposition must be approached; and I say it without any affectation, with the greatest respect for my learned friend Mr. Phelps and for his ingenuity, that I find it difficult to understand and to appreciate what it is that I have to meet on this part of the case. The lessees may be treated, for the purpose of this discussion, as the owners of the islands and the owners of the industry. What is their position? * These are their rights fully and exhaustively stated: their right to kill the seals upon the land-an exclusive right; the right to kill within the territorial waters— an exclusive right; their right, on terms of equality with all whose interest or convenience may prompt them to resort to the high seas, to pursue and kill the seal. * * * "Where is the right that is invaded by that pelagic sealing? It is not enough to prove that their industry (if I must use that phrase) may be less profitable to them because other persons, in the exercise of the right of sealing on the high seas, may intercept seals that come to them-that may be what lawyers call a damnum, but it is not an injuria. Let me assume that the island is divided by a boundary line, between two owners, one-half of the island given to A, the other half given to B. Would A have an action against B— could he complain that B had perpetrated a legal injury upon him if B not merely killed the seals that came to his own division of the island, but exercised his right of sealing on the sea and killed seals there which might have gone, or some of which might have gone, to the land of A—if B had, in other words, exercised his right to kill on the high sea? That would have been a case in which the profits or the volume of A's business might have been diminished, and he would, therefore, have suffered a loss, a damnum; but a damnum does not give a legal right of action. * * "The PRESIDENT. Unless done maliciously. "Sir CHARLES RUSSELL. You are good enough, Mr. President, to anticipate the very next topic-perhaps not immediately the next, but a topic to which I am going in a moment to advert. They would have a right to complain (and this meets the whole of the illustrations which all the ingenuity of my learned friends have supplied) if it could be truly asserted that any class or set of men had, for the malicious purpose of injuring the lessees of the Pribilof Islands and not in regard to their own profit and interest and in exercise of their own supposed rights, committed a series of acts injurious to the tenants of the Pribilof Islands. I agree that that would probably give a cause of action; and, therefore, they have the further right (what I might call the negative right) of being protected against malicious injury. "Lord HANNEN. I follow your argument so far, but does that argument meet an illustration of Mr. Phelps? Suppose dynamite was used for the same purpose and resulted in the wholesale destruction of fish, that would not be malicious, because it was done for the purpose of immediate gain. What would you say to that case? "Sir CHARLES RUSSELL. I have not forgotten that illustration, and as you mention it, my lord, I will come to it at once. * * To begin with, I should say that it might be very strong evidence, as one would say in our English courts, to go to the jury, of malice; but it is not every act which causes destruction, and even destruction which may be disproportionate to the gain derived, which constitutes an actionable wrong. Take, for instance, the mode of fishing known as trawling. I think you all realize what trawling is: that mode of fishing-dragging a heavy beam with a net along the bottom-has the effect of destroying enormous quantities of small fish and, still more, of disturbing spawning grounds, and causing an enormous amount of mischief in the destruction of fish. Has any international law ever declared, or has any nation ever asserted that that destruction outside its territorial limits-because trawling goes on many miles out at sea and in very deep waters-would give a cause of international complaint as a matter of right against the trawlers of another nation? No, because on the high sea all are equal; and although that particular method is a destructive method, the case is met in the only way in which it can be met, by regulations, by conventions, but not by the assertion of a legal right to prevent the trawling, even although it cause that great mischief. "Then may I also put the question with reference to the use of dynamite from another point of view? One might use dynamite for the purpose of trying some very important experiment, or testing some important invention connected with war-torpedo experiments, or what not-these may be tried upon the high seas, outside territorial waters; and yet such experiments may be conducted in such a position as regards an adjoining nation that very considerable mischief may be done temporarily to the fishing interests of that particular nation. But that would be a perfectly legitimate use of the high sea. * * * "Always bearing in mind that we are arguing upon the assumption of no property and no exclusive right, let us see what would be the consequences of this new principle which is asserted. Where will it land us? Just let me put some of the cases. Take that large and increasing volume of industries carried on upon the west coast of America, and along the coast of British Columbia, and stretching farther north along the Alaskan coast, known as the salmon-canning industries. Supposing by some modern system and improved method of catching salmon, neighboring nations should be attracted to the fishing, and, catching large numbers outside the territorial waters, should intercept the salmon on their way up the rivers where they would be brought within the reach of this industry: is it to be said because the canning industry would be thereby injured, that there would be a legal right to prevent the fishers from operating outside the territorial waters on the ground that they prevented the salmon coming up the river to the place where they could be more conveniently caught? * Or again, take the case of a game preserver, and there are such in England, who does not preserve game merely for the sake of shooting the game, but who makes a trade of preserving game. They shoot the birds, and thereby they get sport out of them; but they send their game regularly to market, making the best profit they can out of their business. I have already dwelt upon how much greater care and expense and cultivation, or, to use an expression dear to my learned friends, how much more cherishing' the action of the game preserver in the matter of pheasants is than it is possible for the action of the United States or their lessees to be; how the game preserver takes the eggs away from the nest to induce the bird to lay more than it otherwise would; how he places them under an ordinary fowl, and in that way rears them; how he feeds them and keeps them until they grow up, and he kills them; and yet when the birds go off his land upon the land of another, has it ever been heard, could it even be suggested, that this industry of sending his pheasants to market was injured in point of law because his unneighborly neighbors in the open common adjoining waited until his birds escaped from his land, or were on the way back to it, and shot them there, thereby lessening his profits? The cases are absolutely analogous, but the case of the pheasants is much stronger." Right to Protect the The establishment of an industry, however, being assumed, Mr. Phelps, said Sir Charles Russell, proceeded to consider the question as to what a state might do in time of peace for the protection of that industry. The fundamental fallacy in the argument of the United States on this question was, said Sir Charles Russell, that a state had under international law a right in time of peace to do on the high seas, as an act of "self-defense" or "self-preservation," whatever it might conceive to be necessary to protect its property or its interests. This he considered an unsound proposition. By far the greatest number of instances recognized by international law of rights of self defense or self-preservation were cases of belligerent rights, which rested on the true basis of all exceptional acts of selfdefense or self-preservation-the genuine emergency of danger. But even as to belligerent rights there were very clear limitations. Pursuing this subject, Sir Charles Russell said: "Again, take the case of the revenue laws-the hovering acts, which are referred to in the argument, as if they afforded some justification for the position of the United States as to self-defense or self-preservation. Upon what principle do those acts rest? On the principle that no civilized state will encourage offenses against the laws of another state the justice of which laws it recognizes. It willingly allows a foreign state to take reasonable measures of prevention within a moderate distance even outside territoral waters; but all these offenses, and all offenses of the same class and character relat ing to revenue and to trade, are measures directed against a breach of the law contemplated to be consummated within the territory, to the prevention of an offense against the municipal law within the area to which the municipal law properly extends. But it does not follow that all acts of this kind will in all cases meet with assent. It certainly would not, and could not be expected to meet with assent, if the * acts were attempted to be enforced at a considerable distance from land, and I affirm that in no such case by international law could it be maintained as of right against an objecting nation. * "And, indeed, as I read my friend Mr. Phelps's argument upon this point, he seems to admit that that is the true view; because on pages 170 and 171 my friend, dealing with one of the contentions advanced on the part of Great Britain, says: """An effort is made in the British Counter Case to diminish the force of the various statutes, regulations, and decrees above cited, by the sugges tion that they only take effect within the municipal jurisdiction of the countries where they are promulgated, and upon the citizens of those countries outside the territorial limits of such jurisdiction.' "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.' 6 "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 municipal 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 |