86 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



say, it would stand upon a general dissertation on the freedom of the 

 sea, and the right of tishing as a part of the freedom of the sea, and 

 upon this favourite proposition of my learned friends that they recur to 

 with so much pleasure — (because it seems more grateful to them than 

 discussing some other propositions in the case) — that you cannot give 

 an extra-territorial effect to municipal statutes. That is all very true 

 as a general proposition, but not true as applied to this class of 

 cases. It is as true in this case, as it is in the other cases of the 

 Atlantic: it is true' that the sea is free: it is true that fishing, as a 

 general rule, is one of the rights of tlie freedom of the sea: it is true 

 That as a general rule statutes do not extend in their effect beyond the 

 territorial jurisdiction of the nation tliat enacts it. We should have 

 the advantage in our claim for payment for the schooners that were 

 destroying tlie pearl fisheries, of those propositions. Should we suc- 

 ceed"? and if we should not, upon what ])rinciple is one rule to be 

 appealed to in that case, and another in this? 



Now, sir, if it Avere true that those Pearl Oysters had to go ashore 

 seven months of the year in order to continue their species, and went 

 ashore upon the British territory for that purpose, would the case be 

 any weaker ? Should we be able to say under those circumstances "you 

 could successfully maintain your right to tlie oysters, if they had stayed 

 in the sea all the time outside your jurisdiction, but if they went on 

 laud and propagated there you could not"? 



Senator Morgan. — Does the British Government get any revenue 

 from these fisheries? 



Mr. Phelps. — I do not know. I suppose they do. I take it for 

 granted that they do, or they would not regulate them by public enact- 

 ment. 



Sir Charles Russell. — I do not speak with certainty, but I believe 

 not. If you think it material we can enquire. 



Mr. Phelps. — I do not speak with certainty. I supposed they did, 

 but I do not really know. 



Senator Morgan. — The American government, of course, get a reve- 

 nue from the product of the fur-seals, and they are made tlie instrument 

 of profit there to that extent. 



Mr. Phelps. — That is a view of the case lam coming to pretty 

 soon. I had supposed that the British Government derived a revenue. 

 I may be mistaken. My friends would know a great deal better than I 

 should, but it is not material to my argument. 



If you maintain the unquestioned right of Great Britain in the pearl 

 fisheries (which they contend for in their argument very properly), I ask 

 upon what ground you are expected to discriminate the case of the seals 

 from that? because when you come to look into the condition of the 

 animal, these animals who have come on sliore to live, to propagate, to 

 continue to exist, are ten times as much attached to the coasts as the 

 fish. If there is any discrimination between the two cases the case of 

 the seals is ten times stronger than that of the oyster. 



Then it is said by whichever of my friends is responsible for the 

 printed argument (and I believe it is said in the oral argument). " The 

 oysters are on the bottom of the sea; the seals are on the top. That 

 makes a difference". In the first place, what authority does that stand 

 on. When they set up a distinction that has no reason for it, and no 

 sense in it, why, if it exists, it exists as a technical rule that is estab- 

 lished by authority, and, therefore, must be regarded. Is there any 

 authority for it? Is there a line from anybody who wrote before this 



