ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 37 



for a precedent. There is no iisao-e, for nobody ever iittenipted any 

 such thing before; and, therefore, while what is right is plain, while 

 the way-faring man, though a fool, Avhen he looks at the circumstances 

 of the case, can see what justice calls for, what is sound policy, and the 

 interests of mankind so far as they have an interest in this subject, — 

 while that is all plain enough, while we can see, as my learned friend 

 says, wliat the law ought to be, we are powerless to declare it. Then, 

 Sir, when you have so decided, you have decided another thing; and 

 that is, that no further international Arbitration will vex the general 

 ear of mankind, except ujion pure questions of ftict. 



If that is to be the conclusion, if that is to be the contribution of 

 such Tribunals to the science of international law, their mission will be 

 very speedily terminated. You are in the place. Sir, I most respect- 

 fully say it, which the (Tovernment of the United States miglit have 

 occupied for itself. Instead of asserting their right and putting them- 

 selves on the general sense of mankind as every nation does in every such 

 case, that Government has stepped aside and has said — " Say you what 

 we should have been justified in doing; say you what you would have 

 done if you had constituted the Cabinet that controlled the affairs of 

 the United States Government, say you what you would have done. 

 Sir, if you had been the President of the United States, or Secretary of 

 State, in this emergency; tell us what you think you would have had a 

 right to do and what it was necessary to do, and what you believe that 

 mankind would have justified you in doing." 



Another word about the assent of mankind, which is, of course, the 

 ultimate authority, the last judgment on questions of international law. 

 It comes to that sometime. A word about how that is to be ascertained 

 where it has not been so far ex]iressed by general usage that it may be 

 regarded as' established. In the first i)lace, it may be inferred in the 

 proper case. In the next place, it may be jiresumed in the proper case. 

 It may be anticipated by inference; it may be anticipated by presump- 

 tion, or by both. It may be inferred where the proposition in question 

 has been made the municipal law, as in this case, of every civilised 

 country. Are you to infer that, if all nations could be called together 

 to decide upon this question, they would reject the universal rule which 

 they all adopt at home, — the protection of animals of this kind during 

 the breeding time that are valuable to man'? That is universal law 

 now in civilisation; and as I said, it goes even further, for there are 

 still left some other motives in our race besides those of dollars and 

 cents, and pounds and shillings. It goes even further; it protects those 

 harmless animals with which the Creator has furnished this world, and 

 which now live here without detracting in any way whatever from the 

 use and enjoyment that mankind has to make of the world. It pro- 

 tects even those, and especially does it protect those which are not 

 merely harmless, not merely contributors to what might be regarded 

 as perhaps a sentimental enjoyment, but to those which do minister, in 

 their place and according to tlieir measure, to the wants and comforts, 

 or luxuries, of mankind. That is universal law. Xow when the question 

 is whether that is to be applied to this case, what is the fair inference? 



In the next place it is to be presumed, because it is to be presumed 

 that every nation will assent to what is plainly right and just. I am 

 making these observations upon the assumption that what we contend 

 for here is plainly right and just. We shall consider that more fully 

 later on. I assume tliat, for tlie purpose of wliat I am saying now. If 

 there is a plain and obvious right, if there is a plain and obvious wrong 

 in the statement of a question, and you have to presume which way 



