6 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



of peace. Well, who said that it did? Who has said anything about 

 the right of search ? Or the right of seizure? That is as little involved. 



Then, we are told that the question of Regulations, which is the 

 alternative question to the principal one I have stated, alternative in 

 one event, must be discussed in an entirely different argument from 

 the question of the right. Why? We found no difficulty on our side 

 in taking up those two questions in their legitimate order. What is 

 the trouble with my learned friends? It is the same trouble. The 

 moment you begin to talk about Kegulations, you have to approach the 

 actual facts of this case. The moment you begin to talk about Regula- 

 tions, this wretched business of the destruction of gravid females and 

 nursing-mothers stares you in the face; and it is not convenient to dis- 

 cuss the question of right in the light of such facts as that. It is much 

 better as an abstraction than as a reality. I might pursue, if it were 

 necessary, through the arguments of my learned friends, the straits to 

 which they have been driven in order to discuss this question abstract- 

 edly from the facts on which it arises, as if there ever was a question 

 of law in the world capable of being separated from the facts that gave 

 rise to it; as if it were possible, in the actual administration of justice 

 between man and man, or nation and nation, ever to separate or to 

 sever the question of law that is supposed to control, from the actual 

 facts and circumstances on which it depends. 



A great deal of time has been devoted, also, to attempting to prove 

 that the United States, earlier iu this discussion, put itself principally 

 upon the ground of a derivative title from Russia to close up Behring 

 Sea, or to do what is substantially equivalent to that, to extend terri- 

 torial jurisdiction over Behring Sea; and my learned friends seem to 

 be quite unhappy that we have not persevered in that proposition, 

 because they think they can triumphantly overthrow it. You have not 

 failed to observe that they have two stock propositions, the sheet-anchors 

 of their case. The first is that you cannot shut up the open sea. On 

 that they are powerful and triumphant. And the second is that a 

 municipal Statute is bounded in its operation by the limits of the terri- 

 tory in which it exists. To these they perpetually return, and really 

 seem to feel hurt that we should put the case upon very different grounds. 



I am not going over the ground so well covered hy my Associate, Mr. 

 Carter, who took the i)ains, unnecessarily, to point out how inaccurate 

 that was. If the memory of the demonstration he was able to make on 

 that subject has faded from the minds of the Tribunal (and it is long 

 enough ago, perhaps), I commend to the perusal of the Members, if 

 they attach any importance to this point, first, the printed Argument 

 of the United States, pages 27 to 40, and, secondly, the reported argu- 

 ment of Mr. Carter which is in print before you. I content myself (for 

 I shall try to read very little of this wearisome corresi)ondence) with 

 sui)plementing the references he made with two letters which, in the 

 multiplicity of the papers, he omitted to refer to. 



I will ask your attention to a letter in the third British Appendix 

 page 350, dated November 1, and addressed by Sir Julian Pauucefote 

 to the Marquis of Salisbury — a letter that of course we had no access 

 to and did not see, until it apjieared in the British Case, and I shall 

 read but a few words from it. it is an account of the first interview he 

 had with Mr. Blaine on this subject when he arrived in the United 

 States as Minister of Great Britain, under instructions to renew the 

 negociations with regard to the Behring Sea. He reports the interview 

 nine days after he reached Washington. 



I lost no time after my arrival here on the 15tli ulto. in seeking an interview with 

 Mr. Blaine on the Behring's Sea question. 



