FORTY-SIXTH DAY, JUNE 28™, 1893. 



Mr. Phelps. — I liave thus far, Sir, as tlie Tribunal will have per- 

 ceived, dealt with the question of riglit in this case as it would have 

 ariseji if these islands had been the proi)erty not of a Government but 

 of an individual or a corporation. I come now to take a dilferent view, 

 a larger view perhaps, of the question, upon principles that have 

 become a part of international law, in the first place because they are 

 right, in the next place because they are necessary, and finally because 

 they have been adopted by the usage and custom and practice of 

 nations in all parts of the world in respect to all the varieties of j)rop- 

 erty of this class. And still at the risk of unnecessary repetition, let 

 me recur again to the observation I made in the outset, which I desire 

 to keep constantly in view, and subject to which I hope everything I 

 say upon this subject will be understood. That is, that it is not for tlie 

 United States to make out a property or a right; it is for those who 

 propose to continue such conduct as we complain of, to establish the 

 justification for it; and in establishing that justification, the theoretical 

 analysis is for them, if any is necessary, and not for us. 



On this branch of the case my proposition is this: That where any 

 marine or semi-marine animal, valuable and not inexhaustible, is 

 attached, and becomes appurtenant to, a marine territory, is there 

 made the basis of a valuable industry by the nation to which that terri- 

 tory belongs, is protected by its laws and by its care from the extermi- 

 nation that would otherwise overtake it, so as to give to commerce, and 

 to the world, its product, as well as the profits of the industry to the 

 nation or its subjects, it becomes the property of such nation within 

 the definition of the term "property" which I have once attempted to 

 give, even though its habitat (as it is called) may extend outside of what 

 is known as the three-mile or cannon shot limit, partially, entirely, or 

 temporarily, i)rovided, always that if it is temporary it is accompanied 

 by such an animns revertendi as ensures its return. We claim that this 

 rule is established in the first place on authority, so far as the words of 

 writers of acknowledged authority can be regarded as such. That it is 

 established by principle for the sound reason that it is necessary to 

 the continued existence of any such property; that under its protec- 

 tion all property of that sort that remains in the world has been saved 

 and is held to day; and that wherever it has been omitted to be asserted, 

 such product has i:)erished. 



In the United States Argument, page 134, there are one or two cita- 

 tions which as they are brief, and express my idea better than I can 

 express it, perhaps you will pardon me for reading. Puftendorf, in his 

 law of Nature and Nations, has this language: 



As for fishing, tboiigli it hatli mucli more abnudaiit subject in the sea than in 

 lakes or rivers, yet 'tis manifest that it may in part be exhansted, and that if all 

 nations should desire such right and liberty near the coast of any particular country, 

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