ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 121 



cussing liow wide the territorial line may be, wliicli is adopted by the 

 consent of nations, and which, as Mr. Gram says, Norway has never 

 estopped itself by agreeing to, whatever that may be, they will notper- 

 mit foreign vessels to come there and destroy the industry on whicli 

 their people depend. 



Tlie President. — But, jNFr. Phelps, whether the assertion is founded 

 on the principle of extension of territorial waters — whether it is 

 founded on the defence of a national industry — do not you think that 

 concurrence with the views from other nations is equally necessary? 



Mr. Phelps. — I do, and that is the very strength of the position that 

 I have been attempting to maintain. Your question, Sir, anticipates 

 the remark with which I was going to take leave of this branch of the 

 case, upon which I hope it will not be thought I have taken more time 

 than is necessary, although 1 fear I have. What do we chiim from it 

 all — from everyone of these cases where in so many nations, in so many 

 waters, so many kinds of marine, or semi-marine, or submarine i)rop- 

 ertj' (tlie foundation of industry and husbandry), have been success- 

 fully protected, and are protected to this day — what is it that we claim 

 from that? We claim that it shows that in every such case it has been 

 necessary for the nation to assert, and the nation has asserted, a prop- 

 erty interest, well described by Mr. John Quincy Adams as an interest 

 that may, perhaps, be an incofjmrealmterQst. The term "property" is 

 large. It is indefinite: it is broad. Nations have been compelled to 

 assert, and in every case they have asserted, such a property interest in 

 an industry founded upon these animals as entitles them to protect it 

 from destruction; and in every case the whole world has so far 

 acquiesced and assented to that assertion, whether it has had the neces- 

 sity to make similar assertions for itself or not. So completely that the 

 exhaustive diligence with which this case has been prepared has not 

 shown you one instance of any claim to the contrary, except the solitary 

 one (if it comes up to that), which Mr. Gram referred to, when, to the 

 surprise of his people and his Government, a foreign A'essel made its 

 appearance, and proposed to take part in their fisheries, in violation 

 of the regulations which are there established. There is not another 

 instance in the whole length and breadth of this case. 



There is not another instance, either, where a nation having this prop- 

 erty has failed to assert it, or where any other nation, or individual of 

 any other nation, has openly ventured, dared, or proi)osed to infringe 

 it — not one. Of those few instances, principally of the seals in the 

 southern hemisphere, wliere a nation regardless of its interest, perhaps 

 at a day when the interest was not so valuable — has omitted in respect 

 to the seals to make that assertion which would have been respected as 

 it always is if it had been made — what is the consequence? The animal 

 has perished oft* the territory where it belongs. Therefore these three 

 postulates may be drawn, without any contradiction, from this long 

 series of cases: first that the property interest is always asserted where 

 it exists; secondly, that it is always respected where it is asserted; 

 thirdly, that in a few instances where it has been omitted, not from fear 

 of the right of asserting it, bat from neglect, perhaps from the com- 

 parative unimportance of the industry — the consequence lias been that 

 it has gone; and if it had not been for the statutes I have referred to, 

 there would not at this day have been a pearl oyster bed, nor a coral 

 bed, nor a seal, on the face of the earth. And then the Herring Fish- 

 eries — even those pure fisheiies of the open sea that I do not ])retend 

 come within the purview of this principle, except in a very wide view 

 of it unnecessary for us to take here — even there it is questionable 



