ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 25 



vre deny that you have acquired it in any other way ; but, when you come 

 to the business of preserving the seals, we are ready to join you in any 

 and every Regulation necessary for the purpose, without regard to any 

 interest which it may affect". That was their position, — a position 

 perfectly honourable to Great Britain. Whether right in its law on the 

 question of right or not, is another question. It was perfectly honoura- 

 ble to Great Britain to say " We are with you in the preservation of this 

 animal; we donot desire to countenanceor to inflict upon j'^ou any serious 

 injury; we simply assert what we conceive to be the right of the sea; 

 but we will join you in everything that is necessary". So that the issue 

 M'ith Great Britain came to-be, not whether pelagic sealing was right, 

 not whether it could be justified, not whether it was sure to result in 

 the extermination of the seals, — not that at all. It was, " Who shall 

 protect the seal herd by such measures as may be necessary? You 

 propose to do it for yourselves; to that we object, but we will join you 

 in doing it." 



In view of the attitude which this case has assumed, I must trouble 

 you, not at length, with a few extracts from the correspondence to 

 establish that position, because I think it a very important one in the 

 threshold and outset of this case. I say that Great Britain never under- 

 took to defend this business of pelagic sealing; she never undertook to 

 deny that it resulted in extermination ; she never undertook to say that 

 the Canadians must be protected in it. In one letter only in all this 

 voluminous correspondence, and if I have overlooked anything I shall 

 be glad to be corrected, in one letter only, in the most guarded manner, 

 something is intimated by Lord Salisbury on this point. 



It will be found in the first United States Appendix, page 208, in a 

 long letter in reply to Mr. Blaine. 



With regard to the first of these argnments, namely, that the seizure of the Cana- 

 dian vessels in tlie Behring's Sea was justitied by the fact that they were engMged in 

 a pursuit that is in itself contra horios 7)W7-es — a pursuit which of necessity involves 

 a serious and permanent injury to the rights of the Government and ])eoplo of the 

 United States, it is obvious that two questions are involved; first, whether the pur- 

 suit and killing of fur-seals in certain parts of the open sea is, from the point of 

 view of international morality, an offence contra bonos mores ; and, secondly, whether, 

 if such be the case, this fact justifies the seizure on the high seas and subsequent 

 confiscation, in time of peace, of the private vessels of a friendly nation. 



Then he says, 



It is an axiom of internntional maritime law that snch action is only admissible 

 in the case of piracy or in pursuance of special international agreement. This prin- 

 ciple has been universally admitted by jurists, and was very distinctly laid down by 

 President Tyler in his special message lo Congress, dated the 27th February, 1843, 

 when, after acknowledging the right to detain and search a vessel on suspicion of 

 piracy, he goes on to say: With this single exception, no nation has, in time of peace, 

 any authority to detain the ships of another upon the high seas, on any pretext what- 

 ever, outside the territorial Jurisdiction. 



Now, the pursuit of seals in the open sea, under whatever circumstances, has never 

 hitherto been considered as piracy by any civilized state. Nor, even if the United 

 States had gone so far as to make the killing of fur seals piracy by their municipal 

 law, would this have justified them in punishing offences against such law, com- 

 mitted by any persons other than their own citizens outside the territorial jurisdic- 

 tion of the United States. 



In the case of the slave trade, a practice which the civilized world has agreed to 

 look upon with abhorrence, tlie right of arresting the vessels of another country is 

 exercised only by special international agreement, and no one goA'ernm(>nt has been 

 allowed that general control of morals in this respect which Mr. Blaine claims on 

 behalf of the United States in regard to seal-hunting. 



But Her Majesty's Government must question whether this pursuit can of itself 

 bo regarded as contra bonos mores, unless and until, for special reasons, it has been 

 agreed by international arrangement to forbid it. Fur-seals are indisputably ani- 

 mals /era naturw, and these have universally been regarded by jurists as res nullins 



