ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 29 



requires reply. It did not seem to me that the suggestion commended 

 itself to the judgment of the Tribunal. The question of right, upon 

 whatever ground it is asserted and upon whatever ground it is denied, 

 remains. My learned friends were alarmed api)arently at a remark that 

 fell from Senator Morgan, that he thought there was anotlier question in 

 this treaty. They seemed to fear there was some point as yet unkuowu 

 and undisclosed, that was liable to spring out of the recesses of this 

 document to embarrass the Tribuiml, or to subject them to some claim 

 they had not heard of. I did not so understand the remark of the 

 learned Arbitrator. Perhaps I misunderstood it. I understood him 

 to mean that these questions were to be read in the light of the first 

 article of the Treaty, and that when read in connection with the con- 

 text they submitted exa(^tly the i)roposition I have submitted this 

 morning, whether the right existed to carry on this business with its 

 necessary consequences. 



Now sir, it is for those who engage in such a business with such con- 

 sequences to justify it. The attempt to assume that they are engaged 

 in a lawful business and are suri)rised to find that upon some uncom- 

 prehensible grounds the i)ursuit of tliat business is objected to, will not 

 succeed. The burden of Justification is on the other side. To assume 

 that they are simply engaged in a lawful industry which the United 

 States claims upon some ground to interrupt, is to beg the whole 

 question. 



The question in regard to regulations I shall encounter later on. I am 

 now saying, as 1 have said, that when a Groveriiment presents itself, as 

 the proprietor of such territory, with such an industry established upon 

 it for nearly half a century, and when it is proposed by the individuals, 

 whose description I shall have to deal with later, to destroy that industry, 

 to exterminate the race of animals upon which it is founded, and to do 

 it in a manner that is prohibited by all law everywhere, and which is so 

 barbarous and inhunmn that it ought to be prohibited, if it had no con- 

 sequences at all of an economical character, the parties that propose to 

 do that under the pretence of the freedom of the sea, must establish 

 their justification. The burden is upon them. 



Now, how do they propose to do if? They rest their case upon two 

 proi)ositioiis : first, that the seals ureferce naturfv, and are therefore open 

 to be killed by anybody; sec(uully, that the high sea is free, so that con- 

 duct such as 1 have described, if the Tribunal find as a matter of fact 

 that it is described correctly, is a part of the freedom of the sea, and 

 must be submitted to by any nation, whatever may be the consequences. 

 Those are the propositions. That is the justification. Both those prop- 

 ositions we deny. 



But before I discuss them, I had intended to contrast the position of 

 Great Britain on this trial with the position that I have shown that it 

 occupied all through the correspondence. There, questioning the right, 

 undoubtedly, of the United States Government to protect itself, gen- 

 erous and complete in its offer to join the United States in doing every- 

 thing that was necessary without regard to any interest. Here, the 

 whole case, aside from the discussion of the question of strict right, has 

 degenerated into a defence of the business of pelagic sealing, from the 

 re])ort of the British Commissioners, with which they set out, to the end 

 of the argument of my learned friend, Mr. Kobinson, when he a]»y)ealed 

 yesterday to the Tribunal to takecareof the 1,083 people whoaie engaged 

 in the business of pelagic sealing, to take care of the towns that desire 

 to enhance their prosperity by inducing people to come there to engage 



