36 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



I hog that it may not be inferred from wliat T say upon this point, 

 whicli I ho])e to dismiss pretty soon, — I beg that it may not be under- 

 stood tliat I am treatinji- tliis case as a new one — as one that is not 

 covered by the established principles of law. I shall contend to the 

 contrary with very fiieat confidence. But I am on the point which at 

 the threshold should be very clearly understood, of what is to take 

 place, if I am, in the judgment of the Tribunal, wrong in my assump- 

 tion; if instead of concurring in my view that the general principles 

 of law international and municipal a]>i)]icable to this case control and 

 prescribe its decision, the Tribunal or some of its Members may be of 

 oi)inion that a question more or less new is presented. Therefore it 

 becomes im])ortant and material to clearly understand as far as possible 

 in the first instance what is to take place in that event. 



Now, Sir, if I were to turn about the i)roposition of my learned 

 friend, and apply it to his own case, I fear the result would not be such 

 as would satisfy him with the theory fi'om Avhich it was derived. The 

 fallacy of the whole argument on the part of Great Britain is, that it 

 starts by assuming that the destruction of the seal herd is the exercise 

 by the persons engaged in it of a plain and clear right, which it is the 

 object of the United States in some way to defeat or to restrict. That 

 begs the whole question, and brings the case to an end as soon as it is 

 begun; for if these people are in the exercise of a right, upon what 

 ground can it be denied to them'? On what footing can the United 

 States complain of the consequences to them of the exercise by these 

 people of what is a right in the view of international law? The case 

 is at an end when that is assumed. But the question in this case is 

 whether they have such a right, upon the fticts and circumstances as 

 they are found to exist, taking the whole case upon the evidence, aiid 

 determining, first of all, what are the facts material to be considered. 

 What is this conduct? What is its character? What are its conse- 

 quences'? The question is whether those who are seeking to work such 

 consequences, and to do such things, can make out its justification. 



Now, says my learned friend, international law is what the nations 

 have agreed to regard as international law. Is there then any usage in 

 favor of conduct of this description in the whole history of mankind, 

 in all the intercourse of nations since the dawn of civilization, and 

 since law began to take the place of mere violence? Is there any 

 precedent for such a business as this is, if it is what we claim it to be, 

 and what I expect to demonstrate it is'? Did it ever take place before'? 

 Is there a treaty, is there a judgment, is there the language of any 

 writer, is there anytliing in law, literature, or history, that can be cited 

 in behalf of such a proposition'? 



It is for them to establish this justification, and if my learned friend's 

 idea of international law is right, we might safely enough accept it for 

 the purposes of this case. 



This Tribunal is substituted, by the agreement of parties, for the 

 right that the United States would have had to assert that proposition 

 for themselves, and to enforce it, if they could, in this individual case. 

 They have waived that; they have discharged the vessels, or some of 

 them, that were condemned ; they have stop])ed the arrest upon the sea 

 of any further cruisers pending those negotiations. They have asked 

 you to say what they would have had a right to say for themselves if 

 your intervention had not been invoked. Is the answer to that tabe, 

 "We do not know, because it is new; because there has been no usage 

 of Nations"'? Why? Because no such outrage was ever attenipted 

 before, There is uo precedent because there never has been an occasion 



