ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 87 



argument, to explain to us why it is that there is a difference between 

 a product of that sort on tlie bottom of the sea, and on the surface? 

 Supi)ose seals i)ropagated on the bottom of the sea instead of going 

 ashore, woukl they concede tliat we should be any better oif ? Suppose, 

 in the nature of these animals, when they came in they Avent to the bot- 

 tom within three miles and their young were born, nurtured and raised 

 there, would that make a case in our favour that we have Jiot now ? Or 

 suppose on the other hand, as I said just now, that oysters went ashore 

 for this purpose. Why, it is very apparent that it is not a difference 

 that could touch the principle? That is not a dilference that there is 

 auy sense in. It is not a difference that was ever heard of before, as far 

 as we may infer from the absence of any authority being cited in favor 

 of it. 



In answering Senator Morgan's question Mr. Foster puts into my 

 liands one of the Acts with regard to the Pearl Banks of Ceylon, It 

 is called Regulation No. 3, of 1811. 



Mr. Justice Harlan. — Where are you reading from? 



Mr. Phelps. — Page 401 of the first volume of the United States 

 Appendix. The Regulation is in these words : 



AVbereas there is reason to suspect that dejjredations are committed in the Pearl 

 Banks of this Ishiud by boats and other vessels frequenting those places in the calm 

 season, without any necessity or lawful cause for being in tliat situation. 



For the jirotection of His Majesty's property rt«ri revenue, His Excellency the 

 Governor in Council is pleased liereby to exact and declare: 



Then follows the Regulation. 



That if any boat or other vessel shall hereafter, between the 10th of January and 

 the end of April, or between the 1st of October and the end of November in any year 

 be found within the limits of the pearl banks, as described in the schedule hereunto 

 annexed, anchoring or hovering and not proceeding to her proper destination as wind 

 and weather may permit, it shall be lawful lor any person or persons holding a com- 

 mission or warrant from his excellency the Governor, for the purpose of this Regu- 

 lation to enter and seize such boat or other vessel, and carry tlie same to some 

 convenient jiort or ])lace in this island for prosecution. And evei'y such boat or other 

 vessel is hereby declared liable to forfeiture by sentence of any court having revenue 

 jurisdiction of sufficient amount, and shall be condeumed accordingly; two-thirds 

 thereof to the use of his Majesty and one third to the person seizing or prosecuting, 

 unless such boat or other vessel shall have Ijeen forced into the situation aforesaid 

 by accident or other necessary cause, the proof whereof to be on the party alleging 

 such defence. 



Senator Morgan. — That is a sort of prize jurisdiction. 



Mr. Phelps. — Yes that is what would happen to the vessel of another 

 nation that went in there in the prohibited time, and intended to make 

 a temporary profit out of the pearl oysters, that would destroy the 

 animal itself, and the industry. 



Are we to understand that the meaning of that statute is that if any 

 British subject violates it his vessel shall be forfeited, but it is a nullity 

 to all the rest of the world; and therefore if a British subject will go 

 and register his vessel under the laws of some other nation, that will 

 give him that privilege; that he may come there with impunity, just as 

 these renegade Americans are doing, under the protection of the British 

 flag in the destruction of these seals, to commit w'hat would be an 

 indictable offence if it were not under that protection. Is that the 

 meaning of that statute? Is that what my learned friends desire us 

 to infer from this technical argument as to the general applicability of 

 statutes, that the real reading of that statute is that if any person, 

 under the British flag, should depredate upon these oysters within the 

 prohibited time, his vessel is liable to seizure and confiscation j but if 



