84 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



ratio of their inability to answer them. When a proposition is stated 

 that cannot be answered, my learned fiiends say, "Are we to regard 

 that as serious *? Do you mean to persist in it aiter you liave been 

 informed in the Britisli Counter Case that it is wrong?" Well, when 

 they are ai)piised that we should venture to persist in it till we heard 

 the answer to it, that occasions reiterated and additional surprise. Now, 

 if you do not like my brother Carter's reason, if that is not sufficient, 

 what is the reason on which this case must be determined? On what 

 ground does your proposition stand? Here are two i)ropositions tliat 

 are directly opposed to each other; one of them must stand to the 

 exclusion of the other. 



The proposition on our side is that the nation to which such a prop- 

 erty appertains, where it belongs, and is produced, which can alone 

 admiinster it, and which has at labour and expense and through a long- 

 period of time established that industry, has a right to it by the prin- 

 ciples of international law. — Their proposition is that it belongs to such 

 portions of numkind, — 1083 people, I believe my brother Ivobinson says 

 constitute mankind in this case, — that it belongs to such portion of 

 mankind as want to use this property in a way that is certain extermi- 

 nation. 



Now, there is where we are at issue exactly. When we ask our 

 learned friends: has this been established by authority, so that we are 

 too late in setting forth our ])roposition ? We are referred only to one 

 or two newspaper writers. When we ask for the practice and usage, 

 which, in another part of this case, we are told by my learned friend 

 constitute international law and is indispensable to it, you find the 

 practice of the whole world is the other way. In every case, when we 

 get down to fundamental })rinciples and ask for the right on which it 

 stands, what have they to say? Sir, I res])Octfully say, as I said in the 

 outset, the statement of this proposition either to a legal mind or to a 

 mind possessed of any sense of justice, is its argument; — there is noth- 

 ing to add to its statement; the answer to it may be demanded, and 

 until that answer is ibrthcoming surely there is nothing more to be 

 said. 



I do not propose in the review I am about to make, somewhat rap- 

 idly, of the various instances, — all the instances in the history of the 

 world that we know anything about property similarly situated, — to 

 spend a great deal of time, because this has been presented by my 

 associate in the opening, and it certainly is not necessary for me to 

 repeat what has been already said at the risk of not repeating it as 

 well; but I want to review them in order to give point to what I 

 have said in respect to the argument on the other side, and in respect 

 to the practical application to these principles. 



The first one is tliat of the Ceylon Pearl Fisheries, They extend 

 from 6 to 21 miles from the shore, outside entirely of any jurisdictional 

 line. There is not an oyvSter, as far as I understand, within 6 miles of 

 the shore. By various Statutes, and most just and proper Statutes, 

 throughout a very long period of time (I will not undertake to say how 

 long,) but it is said in the British Argument "from time immemorial," 

 and I presume that expression is correct, these Fisheries have been reg- 

 ulated and ])rotected, and exclusively enjoyed under the British Gov- 

 ernment or its Colonies. Not a pearl-oyster was ever taken there, so 

 far as we have any reason to believe, by any man, except subject to 

 those Eegulations, — and not an instance has been produced of any 

 ship or any individual ever attempting to interfere with them. 



