ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 101 



Mr. Phelps. — Yes, and where either nation has no right to legislate 

 except against its own subjects. And when various nations concur, 

 they do not make the case any stronger against a non-concurring nation 

 than it would be if only one nation legislated. What I am upon is, what 

 is the usage and custom of mankind f And if you have, in the pursu- 

 ance of tlie duty you have undertaken of deciding these questions, 

 to ascertain whether the freedom of the sea extends to this business, 

 and what is the general sense and sentiment and opinion of mankind 

 in reference to it, this is among the instances from which you derive 

 the sense of mankind. There is the action of these nations over a 

 part of the high sea, expressing what? Their belief that protection 

 of this sort is necessary in the free open sea, even of those animals which 

 do not attach to any territory, have no home and no resort, and which 

 no nation is making a husbandry of on its own territory at all. 



Now I was about to remark as to a question put by me before tlie recess, 

 as to what would take place in these waters outside of the three-mile 

 limit covered and protected, or wliere the Government had covered and 

 protected, as far as they could, the animal life — the fish or oysters, what- 

 ever it may be — what would take place if a vessel of some other nation, 

 notwithstanding that, sails into this area and says " I am on the high 

 sea — 1 will take these fish and care nothing for your Statute or Eegula- 

 tions, and care nothing about what the consequence is," What would 

 take place? 



" War" says the learned President, and in answering that question 

 in that way he touched the very point of this whole subject. What will 

 take place? The force of that nation will repel that aggression — that 

 nation will put a stop to that infringement of its rights and of those 

 instructions. Then if the nation to which this invading ship belongs 

 chooses to take the matter up, why it may or may not result in war. 

 There are such things as just causes of war recognized in international 

 law. If any nation should rise up and say if a predatory schooner of 

 one of our subjects goes up on to your coast in defiance of your Laws and 

 Pegulations to exterminate there a fishery industry and you rejiel it by 

 force we will go to war, then it would stand in the judgment of mankind 

 how far it could maintain that proposition. It would be force in the 

 place of war. I would use the word " force". 



Well now when the United States put aside the right which in my 

 judgment it ought to have exercised, and refers it to this Tribunal, wliat 

 is the question that is referred? Is it not what would the United States 

 have been justified in doing for itself. The Award of this Tribunal 

 should give to the United States all they would have if they exercised 

 thisright for themselves. That i)erhaps comes under a little later branch 

 of my Argument which more strictly deals with the subject of self- 

 defence than this does on the question of a property interest with which 

 I am now dealing. 



The President. — It is a very interesting and ingenious exposition of 

 your views, but that is not quite an answer to another question on 

 which I should like to hear you, and which you put a few minutes ago: 

 what would happen in the case of the Jan Mayen Convention if an Amer- 

 ican boat wa§ fitted out and was to interfere? You ])ut the question, 

 but did not give us an answer. I would like to know your view, whether 

 the American government, not being a party to this Convention, would 

 stand exa(;tly by the same obligations and have the same rights as those 

 other Governments which have been parties to the Convention. You 

 understand mv meaning? 



