ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 5 



feel, wlio is capable of feeling, tliat the bare statement of tliis case in 

 its naked and simple facts, exactly as they are established, involves 

 a proposition it is impossible to encounter: that there is no hxw, there 

 is no learning, there is no pretense of Justice that can possibly encounter 

 such a proposition with success. It must therefore be approached 

 indirectly. Your minds, as my learned friend, the Attorney General 

 said, must be "prepared" before you can examine it. He devotes a 

 couple of days of argument to preparing your minds. What preparation 

 does a, judicial tribunal need for meeting a case that is brought before 

 it? What is a tribunal ex})ected to do excei)t to look the case square 

 in the face, ascertain the facts, and apply to those facts the law? 



What is my learned friend's reci])e for the preparation of a judicial 

 Tribunal so that they may be brought indirectly to a result it would be 

 impossible to propose to them directly? Why, you must get rid of your 

 ideas of right and wrong, because that is not law. You must bear in 

 mind that you do not sit to do right; far from it; you sit to administer 

 the law, which is, or may be, a very difterent thing from the right. You 

 must remember that the extermination of the seal is not a matter of any 

 very great consequence, after all, since it only involves the ladies going 

 without their sealskin cloaks ; and that, as to cruelty, that always accom- 

 panies the taking the life of an animal. You cannot help that, and, if 

 you give him what they are pleased to call "a fair sporting chance" for 

 his life, all the dictates of humanity are answered. 



Then the discussion of the case is taken up by starting at some remote 

 point and coming down sideways so as to consider abstract propositions, 

 and not the actual concrete case that is put before you. A day or two has 

 been devoted to arguing the question of the legality of the seizuies of 

 the British vessels made by the United States Government in 1886 and 

 1887. What have you to do with that? Is any such question proposed 

 for deci.sion by the Treaty ? The only function the Tribunal is entrusted 

 with, or needed to be entrusted with on that subject, is to find such 

 facts, at the instance of either party, as the party might think would 

 be material in future negotiations, provided the facts are true. But 

 those facts are all agreed upon ; they are put in writing, and submitted 

 to the Tribunal, and there is no question about them. There never 

 was. They are notorious, well understood, undeniable facts. A little 

 question as to the precise form of their statement arose, which was 

 easily accommodated between counsel ; and the Tribunal is thus relieved 

 from the duty of finding any facts in respect of those seizures at all. 

 Then, for what purpose and upon what principle are two days devoted 

 to the argument of a question not before the Court, which may come up 

 between these Governments hereafter, or nmy not? It is jirobable that 

 it never will, because the whole amount in controversy on that point 

 is not worth a dispute or a prolonged debate. Mr. Blaine once ottered 

 to pay it, as you have seen in this correspondence, if he could settle the 

 important rights of the country for the future in respect of this industry, 

 saying that it was too small to stand in the way, especially as the money 

 was going to individuals who might have supposed and probably did 

 suppose that they were authorized to do what they did. 



It is because it was far more agreeable, and was felt by the accom- 

 plished advocates to be far more prudent to discuss some other question 

 than the right of the Canadians to exterminate the seals in this barba- 

 rous and inhuman manner, that my friends evade that point and say, 

 next, "let us talk about the right of search in time of peace". That is a 

 ground upon which they are formidable. We have had a lar-ge array of 

 authorities to show that the right of search does not exist in the time 



