88 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



he caine tliere under any other flag in the Avorld that he could get the 

 use of, whether it is his own or uot, then he may exterminate them at 

 pleasure. 



Senator Morgan. — It could not be meaut as a hovering provision. 



Mr. Phelps. — One would think not. The language is broad enough. 

 1 shall have occasion pretty soon, in another connection, to consider 

 exactly, what is the meaning of such a statute. I am now upon the 

 general subject. Have they shown us that in this case, or in any other 

 of those that have been referred to, and that I shall refer to again, — 

 have they shown us that in any case, either that an individual has been 

 permitted with impunity to violate any statute made for the protection 

 of any such product, or that any nation in the world in diplomatic cor- 

 respondence, or in any other way, has challenged the right, or asserted 

 the right of its citizens to go and i)articipate in it. It is the usage and 

 custom of nations that my friend says makes international law; and it 

 undoubtedly does when such usage and custom have been sufliciently 

 expressed, and it can only be expressed by acquiescence. Undoubt- 

 edly, on a point where the usage and custom of nations can be regarded 

 as established, he is quite right in saying that makes International 

 law, and may make it to such an extent that you can not countervail it, 

 even upon strong moral considerations. We are not now engaged in the 

 discussion of the general principles of the extent and applicability of 

 particular statutes, whether they are or are not sometimes defensive 

 regulations, whether they may or nuvy not be extended bejond the 

 three mile line. That is uot the point. What is the usage and custom 

 of nations in practice, in point of fact, in regard to pro]ierty of this 

 kind under similar conditions — weaker always — but similar,? Now I 

 repeat the question : 



Instead of this argument on the general ])ropositious that nobody 

 denies, and that is perfectlj^ foreign to anything we have before us, 

 have t\\ey shown us the case in any of these countries wiio have asserted 

 such rights in which any individual belonging to another country has 

 been permitted to transgress it, or any nation has challenged their right 

 to forbid it? I go further: have they shown that in addition to all these 

 instances, which, as I said, comprehended every case of such property 

 that we know of, now existing in this w^orld, have they been able to say 

 " in another country that you have not mentioned, in respect of another 

 class of similar property which you have not brought forward, a nation 

 which has undertaken to protect it and build up an industry upon it, 

 has found itself incapable of enforcing its rights, and has permitted 

 foreigners to come there and invade it to the extent of destruction, or 

 to any extent at all. Have they fouud such an instance? Not one. 

 Starting with my learned friend's proposition, that it is the usage of 

 nations, just or unjust, right or wrong — that makes international law — 

 that it is of no use to talk about the principles of justice, of right, 

 of the fundamental ideas that underlie the law, the necessity of man- 

 kind, the policy, tlie comity of nations — the ])oint is what the usage 

 of nations has been, we undertake to show (and there is no contradic- 

 tion in the evidence in this respect) what the usage of nations has 

 been in every similar case that we know of. Do they ])r()duce any 

 other case establishing a dift'erent precedent? Not one. But they say : 

 " statutes do not operate beyond the jurisdiction of the country that 

 enacts them". Does the power of the country (call it by what name 

 you please), operate to the extent of protecting this industry whether 

 it is inside of the three-mile line or not? That is the question. Now 



