30 ORAL ARGUMENT OF HON. EDWARD J, PHELPS. 



in such a business as tbat, to remember that this was a most important 

 industry, and that no regulations must be adopted except such as were 

 perfectly consistent with its preservation ; a resistance from beginning 

 to end to every proposal of regulations that did not provide — not only 

 admit, but i)rovide — for the continuance of this business in all its sub- 

 stantial particulars. 



Wliich government has changed front in the history of this business? 

 Is it that of the United States or that of Great Britain ? On the diplo- 

 matic correspondence the record of Great Britain is perfectly clean and 

 fair. It is not open to criticism except as to the correctness of their 

 proposition that we may not defend ourselves against tliis wrong — a 

 question that admits, of course, of discussion ; but as to the rest of it, 

 as to the inhumanity, the extermination, the injury to the United 

 States — all that is jmt aside. Here we encounter, from one end to the 

 other, the most strenuous resistance to any sort of regulation of any 

 kind that puts any real restriction upon the business of pelagic sealing. 



Eeturning, then, in the time that remains to me this afternoon, to the 

 question of this justificatiou, we reply to the propositions of Great Brit- 

 ain, that the seal are not ferce naturo}, in the legal sense of that term; 

 that they are, in the true sense of the word, the property of the United 

 States; and what 1 mean by the term "property", I shall try to describe. 

 That, in the second place, such a business as we claim pelagic sealing is, 

 is not open to anybody, upon the open sea any more than any where 

 else, and that any nation that is injured by it has a right to object. 



My learned friend the Attorney- General informs us that this case is 

 not to be decided upon what appears to be right, or what appears to be 

 wrong. It is to be determined upon the principles of international law ; 

 that the object of this Tribunal, the duty of this Tribunal, is to admin- 

 ister the principles of international law. We agree to that. We have 

 not proposed any other standard. We have not asked to set up any rule 

 of conduct that is not justified by what is properly called international 

 law. Then what is international law? He tells us it is what the nations 

 have agreed to; that the idea that international law depends upon what 

 is right, upon what is just, upon what is indicated by morality and fair 

 dealing, is chimerical; that a person who asserts any such proposition 

 goes up into the clouds of metaphysics, and occupies himself with dis- 

 sertations not upon what the law is, but what it ought to be; and that 

 this Tribunal is not convened for that purpose. 



On those questions of international law in respect to which it maybe 

 admitted that nations have so far concurred that the points have become 

 settled and established and understood, there is no question that such 

 conclusions jirevail. Nobody on our side has pretended that you 

 were to overrule established principles of international law that have 

 become settled and recognized, because you were brought to see or to 

 think that you saw, that they are in some respects contrary to ethical 

 considerations; so that if a vessel were brought before His Lordship, 

 if he were sitting again in the court over which he so long presided 

 with such eminent distinction — cai)tured in war, for a breach of block- 

 ade, or for carrying contraband of war, or captured by a privateer, 

 legitimately commissioned by one of the belligerents and brought in for 

 condemnation in his court, — he is to be harangued upon the subject of 

 whether the established law of the world upon those points is or is not 

 in conformity with ethical considerations, is or is not what he would 

 declare the law to be if in place of a judge he were a law-giver, to pro- 

 pound law instead of administering it. Nobody pretends that. It would 

 be absurd. 



