ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 83 



better right, that step on the part of the iiation that appropriated it 

 would liave been open to question, and would have been made the sub- 

 ject of controversy. If they had a])propriated what belonged to some- 

 body else, their appropriation would have been open to challenge, and 

 would have been challenged. If, on the other hand, they had a[)pro- 

 priated only that which was the common property of all mankind, still 

 more would their appropriation have been successfully resisted and 

 challenged by those who had an interest in doing it, who desired to 

 avail themselves of their right to participate. When the United States, 

 therefore, in appropriating this territory to the x)rotoction of the seals 

 and in founding this industry upon it, have so taken possession of it 

 and asserted the title on which the existence of this herd depends, the 

 question is, what right of mankind have they invaded °? It can only 

 be the right of numkind to exterminate that race of animals, because 

 they cannot participate in it on the sea without doing so. If it were 

 possible for the rest of the world to come and avail.themselves of what 

 is called pelagic sealing of this herd and not exterminate it, then the 

 argument of the other side would have the advantage of being placed 

 not upon the right of extermination, but upon a riglit of participation 

 in what they say is open to all the world. But that is imi)ossible, as 

 I shall show more clearly when I come to deal with the evidence. 



When the United States stretches out its arm and takes possession 

 of this property, this herd or this interest — which appertains to their 

 territory, is produced there and would perish there — takes care of it 

 and protects it and founds this industry upon jt, and asserts its title, 

 then when the individuals who challenge that come forward and say 

 we are assuming a title to what belongs to the world, and are shutting 

 them out from a participation in what as a part of the freedom of the 

 sea belongs to all mankind^ I say, "What is it you pro])Ose to dol — 

 what do you want to do"? We want to take tliese seals, indiscrimi- 

 nately in the watei'. Can you distinguish between sexes ? No. Do you 

 attempt to distinguish? No, because it would be of no use." What 

 is the result of that"? The result would be tlmt before live years the 

 seals would have ])erished oft" the earth. Now upon tlie proposition of 

 my learned friend, international law is on that side. International 

 law provides by a principle founded upon wrong and not upon right, 

 enunciated nowhere, by no writer, applied in no other instance that we 

 hear of in the history of the world — international law, this subtle 

 essence that only exists for mischief and can be traced to no founda- 

 tion of right, steps in now and says we cannot assert our right to this 

 property on the part of the United States Government. It is the right 

 of mankind to exterminate it, and therefore, if there is a little knot of 

 adventurers anywhere, who desire to embark in that business, the 

 Government must retire and extermination must take place. 



I say that stands upon no authority; it is justified by no writing in 

 any book that would receive a moment's attention by lawyer or judge. 

 It is justified by no practice that ever prevailed; but is contradicted 

 by all practice that ever was known ; it rests upon nothing, — upon no 

 reason that can be stated. My learned I'riend criticised my associate, 

 Mr. Carter, for saying that the right of the (iovernnient to avail itself 

 of this industry depends upon the fact that they could so administer it 

 as to preserve it for mankind, at the same time giving mankind and 

 themselves the benefit of the product. That surjjrised my learned 

 friends. Their capacity for surprise is large; and I have noticed some- 

 times that their surprise at propositions advanced, was in the direct 



