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their wanton destruction and total exhaustion, it is not only our right but our duty to do whatever is necessary to protect and preserve them, not only for the welfare of the present citizens of the United States but for the benefit of mankind.

Without treating at length of property as property, it may be well to note that the very concept of property involves the idea that it is for use and not for exhaustion. It is doubtful if anyone under any claim of ownership, no matter how positive, or certain, or well recognized, has the moral right of absolutely destroying that property which is capable of being preserved for the future. The owner of such property, in fact, even under the most complete type of title, is morally justified only in using the property, taking the usufruct of it, and not in absolutely destroying it. If this be true and I think it is indisputable then the Japanese as well as ourselves, are totally devoid of any moral right to totally exhaust the salmon fishery of the North American continent.

Why have we not the right, in reason and in justice, to protect the salmon which are hatched in the waters of Alaska and which would not exist were it not for our protecting care? It is true that they go out in the ocean and that the ocean generally, for the purposes of navigation at least, is free to all. Is it not a violation of good morals, not only to take the property which has come into existence through the labor of others, but to absolutely exhaust the source of the reproduction of that property-and that is precisely what the Japanese are threatening to do in the coastal waters of Alaska. It may be that we cannot properly follow the salmon to any place which they may choose to go in the Pacific Ocean. I do not claim any such thing. I claim only what John Marshall claimed, and that is that a nation has a right to exercise jurisdiction a reasonable distance from its shores for the protection of those rights which are in their nature essential for the welfare of its citizens. The test of reason must always be applied. Nor do we seek by this legislation either to destroy any treaty or to interfere with general navigation. We seek only to apply the principles of the old hovering acts, which were found necessary to break up the slave trade and to prevent smuggling. What we are attempting to do here is not novel in principle, although it may be unusual in application.

Moreover, in the Bering Sea we have a special physical condition which justifies acting on our part. Stretching out into the sea we find the shallow continental shelf which has been built up by the silt brought down from the uplands of Alaska, and it is over this shelf, like a submarine bridge, that the salmon must pass to their native waters to spawn. To permit foreign nationals to barricade this submarine bridge will prevent the salmon from returning to their home waters and is, I submit, a violation of good morals, and constitutes an invasion, a direct invasion, of the rights of our citizens to foster and maintain and to avail themselves with the products of a great industry. We are not invading, we are not trespassing upon the rights or just claims of any other people. The state of international law on the subject is so uncertain, so chaotic, that it furnishes no protection. Moreover, international law generally has no sanction, as witness the events which have occurred recently in China. International law is powerless to protect us. We cannot even invoke it, because nobody knows what it is. The League of Nations committee

tried to find out and was obliged to say that nobody knew, for the nations could not agree upon it was obliged in effect to say that no definite rule of international law existed as regards to the extent of and the jurisdiction over the marginal seas.

MUNICIPAL LAW IS INDISPENSABLE

In this condition we now find ourselves. International law is helpless, because no recognized rule of international law applicable to present conditions exists. In its very nature incomplete international law furnishes no answer to many problems that press upon the nations of the earth for solution.

Therefore, our only recourse is to our own law-to municipal law— for we have a just right and an inescapable duty to protect what is our own. It is elementary, and almost axiomatic, that in the assertion of jurisdiction over the marginal seas in any except in the recognized minimum of coastal waters, no nation may properly exercise any power that it does not publicly exert and claim, and in some cases it is considered requisite that the claim be made over a considerable period, or, in any event, before adverse claims arise or come into existence.

It will be recalled that in relation to claims of closed seas with respect to gulfs and bays, the great Elihu Root adopts as his own the statement of Stowell in the Twee Gebroeders to the effect that "an area of sea outside of the limits may be prescribed for," and he quotes several other authorities to show that if any such jurisdiction is to be exercised, a claim must be made for it. The claim of jurisdistion and, inferentially, a statement of the grounds therefor must be made. International law of itself gives no rule on the subject, and so if we propose to protect our salmon fishery from destruction we must make public assertion and claim of our intention to do so and of the means to be employed. The way to assert that claim is by a municipal law--an act of Congress. There is no other sufficient manner in which the claim may be made. The lamentable weakness of our Government's position in the Bering Sea seal case was the total absence of a statute in which our claim was asserted. The lack of such a statute is assigned as one of the reasons for the failure of our case by Moore in his International Arbitrations (vol. 1, p. 958), wherein he observes:

8. That it was admitted that no municipal law of the United States had treated the species, individually or collectively, as the subject of property and protection on the high seas.

The acts of Congress passed between 1868 and 1875, inclusive, and the regulations made pursuant thereto for the protection of the Bering Sea seals did not specifically define the extent of the waters to which those acts and regulations applied. Reference was made to the "mainland, islands, and waters of the territory ceded," and to "the limits of said territory" and "the waters thereof."

In 1889, after controversy had arisen about the pelagic killing of fur seals in Bering Sea, an effort was made to amend the law so as to make it "include and apply to" all the waters of Bering Sea east of the line described in the treaty of cession. On February 28, 1889, a bill relative to the salmon fishery of Alaska, which had theretofore passed the Senate, was reported from the House Committee on Merchant

Marine and Fisheries, and on the same day Mr. Dunn of Arkansas offered an amendment by which it was proposed to declare that section 1956 of the United States Revised Statutes, which prohibits the killing of any otter, mink, marten, sable, or fur seal, or other fur-bearing animal "within the limits of Alaska Territory, or in the waters thereof," should "include and apply to all the waters in Bering Sea in Alaska embraced within the boundary lines mentioned and described in the treaty with Russia," by which Alaska was ceded to the United States. The amendment so proposed by Mr. Dunn was agreed to and the bill as amended was passed by the House. The Senate refused to concur in the House amendment and in conference it was agreed to report the bill with the provision that section 1956 of the Revised Statutes should "include and apply to all the dominion of the United States in the waters of Bering Sea," and it was made the duty of the President to warn all persons against entering those waters for the purpose of violating the provisions of that section. It is apparent that in this instance Congress made the complete circle and came out at the exact point of entry, and hence, before the Bering Sea tribunal, we were confronted with the refusal of Congress to even claim by statute the right to protect the seals in the waters of Bering Sea. Sir Charles Russell, one of the counsel for Great Britain, with reference to the amendment which had been adopted in the House but which was not agreed to in the Senate and was changed as above indicated in the bill as passed, made the most of the failure of Congress to claim by legislation what was claimed before the tribunal. He said: "Now I really have to ask, what was the reason for the change? Was it intended that the change should mean anything, or was it intended that it should mean nothing?" (Fur Seal Arbitration Proceedings, Vol. 13, p. 88.)

He invited attention to the fact that Senator Morgan, a member of the tribunal, had opposed the House amendment. And he further pointed out (p. 265) "that title in things must take its root in municipal law."

Moreover, a part of our claim here is that we have a special property right in the salmon which are spawned and hatched in the waters of Alaska. One provision of the bill declares them to be the property of the United States. The property right so claimed is, of course, subject to an implied trust, but the trust does not invalidate or weaken the right. It is fundamental that property rights are created, or declared, or maintained, not by international law, but by municipal law. Without adequate municipal law property rights, in practice, disappear. Hence, the necessity of municipal law to establish and maintain our property right in the salmon of Alaska is clearly evident. It is fortunately true that we have asserted the claim of our superior and exclusive right to the Alaska salmon by the conversations which were held during or about the year 1931 in which the Japanese announced their intention of fishing for and packing crabs in Bristol Bay. The question at once arose about the salmon, and the Japanese assured our authorities that the salmon would not be molested. We were solicitous and zealous for the protection of the salmon, and at that time the individual Japanese who took part in the discussion thoroughly understood that we claimed the exclusive right to protect our salmon in all of the seas adjacent to Alaska.

The very fact that the Japanese Government has consistently and continuously denied the carrying on of any commercial operation for salmon in Bering Sea is additional evidence that they have known and understood our claim of superior right.

But under the present circumstances, when we know that the Japanese have entered the forbidden field as a usurper and have packed salmon in commercial quantities in Bering Sea, something further remains to be done to effectually assert our claim, and that can be done only by enactment of suitable legislation in harmony with the principles of the bill now under consideration. Up to the present moment the Japanese have not acquired any rights which anyone is bound to respect.

Municipal law to cover the present case is necessary for another reason, and that is the need of defining and making explicit precisely what we claim and precisely the measures which we propose to undertake to enforce our claim. The passage of such legislation will prevent the repetition of the taunt that was spoken by the British Foreign Minister, Lord Salisbury, in the Bering Sea case, when he said that we were seeking to defend not only our own traditional and longestablished rights, "but also the rights of good morals and good government the world over" (Bering Sea Arbitration, vol. 12, p. 54).

The bill under consideration makes it plain that we are not trying to remake or reform the world, and no one can have any cause for asserting that we are. It is absolutely necessary to define exactly what our rights are, and what we intend to do to enforce them.

In Regina v. Keyn (2 L. R. Exch. Div. 63) Lord Cockburn justly observes that English courts cannot obtain jurisdiction by the concurrent assent of nations, that is to say, by the principles of international law. We all know that no person can be imprisoned, no ship can be forfeited except by law, and that law must be municipal law. No court anywhere can prosecute or convict any man for anything under the law of nations. That much is clear. There is no way of protecting the salmon fishery except by law. The present law is deemed inadequate. It logically follows, therefore, that our only recourse is the enactment of a suitable law which will do two thingsfirst, forbid the taking of salmon except under such reasonable regulations as may be provided by the proper administrative authority of our Government, and, second, provide a method for the enforcement of that law and a sanction for its violation.

The language of Lord Cockburn on this particular subject, in Regina v. Keyn, is so plainly relevant and apposite that I quote one paragraph, as follows:

"It is obviously one thing to say that the legislature of a nation may, from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea, and as such common to all the world, another and a very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to foreigners within such part, or that, independently of legislation, the Courts of the local state can proprio vigore so apply it. The one position does not follow from the other; and it is essential to keep the two things, the power of Parliament to legislate, and the authority of our courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct, which, it is evident, is not always done. It is unnecessary to the defence, and equally so to the decision

of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of the opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specifically liable to out law by statutory enactment that that law can be applied to them." (Regina v. Keyn, 2 L. R. Exch. Div. 207-8).

DANGER OF ARMED CONFLICT

While I do not wish to say anything which may be construed as indicating my sympathy for a recourse to force without enactment of law, I am gravely apprehensive that unless suitable legislation be passed there will be an armed conflict in Bering Sea. Information which I consider entirely reliable has reached me to the effect that if our fishermen are not protected by the power of the Government against the encroachments of the Japanese, with the certain knowledge that those encroachments will result in the exhaustion of the Alaska salmon fishery, the fishermen will endeavor to protect themselves and their own employment, and that protection can be given only by the exertion of force against the Japanese operators. If, as I fear, a small private war is started between the American fishermen and the Japanese operators in Bering Sea with the view on the part of our citizens of protecting their industry and their livelihood, the foreign relations of the country will be a thousand times more embarrassed than by the enactment and enforcement of the bill now proposed and in fact such a conflict is more likely to result ultimately in war than any other event of which we can readily conceive as likely to happen.

PRESIDENT RETAINS FULL AUTHORITY

It is fully realized that nothing should be done to weaken the hands of the administration in the conduct of our foreign relations. The bill before us may be calculated to strengthen rather than weaken the executive in the exercise of its constitutional powers with respect to our relations with foreign countries. It will be remembered that the authority which we claim and the exercise of which we seek may be exerted only if and when the President shall declare a salmonfishery law-enforcement area in the waters adjacent to the coast of Alaska. If no such area is created or declared by the President, then there is no change from existing conditions. If the bill is enacted, however, I confidently anticipate that the President will faithfully execute the law so made, just as he faithfully executes the other acts of Congress. But in the ultimate analysis, so far as the measure under consideration may if enacted affect our foreign relations, the complete power for conduct of those relations remains and is by the bill reposed in the hands of the President.

A TREATY NOT THE ANSWER

It has been said by some persons for whose opinions I have the most profound respect that we should endeavor to settle this matter by treaty with the Japanese. From that view I must dissent. A

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