102 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Mr. Phelps. — Certainly, Sir, and while the answer will come in 

 appropriately a little later I am very glad to have the question put now; 

 I can answer it as well now as at any time. 



There the case arises where these Governments are entitled to pro- 

 tect themselves against an aggression which is destructive to their 

 valuable industry, and which is without any warrant except the profit 

 that can be made out of it — except the profit to be made out of it by 

 the invading individual. That is a subject I shall deal with by and by. 



Lord Hannen. — And would have equal force if only two made such 

 a convention. 



Mr. Phelps. — If only two or only one, provided always that the one 

 which makes it has a specific right growing out of its territorial interest, 

 to make it. 



I do not mean to say that one nation or half a dozen can control the 

 open sea without any other cause than its interest in the open sea 

 which every body else has alike. I do not mean to say that. I mean 

 to say when the interest is attached to the territory and is in the terri- 

 tory — the source of a valuable husbandry, an interest by which a valu- 

 able animal is preserved coming within the ]Hirview of the case that I 

 have been discussing, there the Government has a perfect right to repel 

 by force, as it would, as it ought and as it always has, any invasion 

 of it. 



Then applying that to this larger area where several nations have to 

 combine to protect this interest, although perhaps it does not attach 

 itself to the shore of either of them, I should say that the nations united 

 would have the same right of protection they would have if standing 

 alone, if the husbandry was peculiar and the interest was particular to 

 its own country; but it is not necessary for us in this case to go so far. 

 The question involves the discussion of rights further out at sea, and 

 sei)arated from the particular territory of the nation. 



I am not prepared at this moment to say as a matter of fact how far the 

 hair seal fishery is protected by this legislation under the convention of 

 various countries. Here is an interest like the whale fishery, which is 

 pursued exclusively in the open sea, which attaches itself to no terri- 

 tory, and is the basis of no industry, of no protection. It is a right 

 that all mankind share in common. Then, when you come to interfere 

 with that in the open sea, by the concurrence of several nations, it may 

 well follow that only the subjects of nations so concurring are bound 

 by that. Why? Because no one of them has a greater right of pro- 

 tection than anybody else has; but the moment, instead of being a 

 pursuit that is in the open sea, it attaches itself to the territory and 

 becomes appurtenant to it, and is there made the foundation of a 

 husbandry, and there protected, and is there preserved from extermi- 

 nation, and there statutes of that sort are applied, then it comes within 

 the doctrine of self-defence, that I shall allude to by and by, of the 

 nation itself, whether it is made the subject of concuirent regulations 

 and statutes of various nations, or whether it stands alone. As if, for 

 instance, Eussia had joined with the United States, as it would have 

 joined if Great Britain had, when the settlement of this question was 

 first made in England in 1887; suppose Pussia and Great Britain and 

 the United States, the three countries principally interested, owning 

 all the territory that approximated to these waters — all the shores 

 that are washed by these waters — suppose they had joined together. 

 Technically, you may say the case is no stronger than it would have 

 been on behalf of each nation protecting its own industry, as if each 



