122 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



AvLetlier tlic places that know tliem now wliore tlioy form so important 

 a part of the existence and the industry of tlie peoi)le, -would know 

 tbein at all. I do not mean to say that those fish would have been 

 exterminated from the earth, because all seas are their home. They can 

 go elsewhere. They need no particular shoal. I do not say the herring 

 and the cod would have disappeared fi-om the earth, but they would have 

 disappeared from those shores where they constitute the commercial 

 interest, the industry, the means of subsistence. And I say, there- 

 fore as the conclusion of this, that when it is adjudged, if it is ever 

 adjudged — that the fur-seal — more valuable than any one of these pro- 

 ducts, more closely attached to the soil where it propagates and belongs, 

 ten times over, — is to be excluded from protection, and that the right of 

 extermination is in any individual man who chooses to go there and 

 perpetrate it, you have then jdaced this animal, which should be the 

 very first to come within the purview of these principles, upon a footing 

 upon which no similar animal, no similar i)ro(luct stands or ever has 

 stood, and you doom him to immediate destruction. We may talk 

 about Regulations — which as a substitute for a dispute, as a means by 

 which nations could bury the disinite, and come together and agree 

 by convention upon what would have been the right of either to have 

 enforced as against the other, if it thought proper, — that has its merits 

 when it comes about in that way; but as the substitute for that right 

 which alone has ever been sufficient to protect any such property, it is 

 a mere rope of sand; and nothing that I could say would demonstate 

 that so completely as the arguments of my friends on the other side, 

 who day after day have been addressing you and urging that under 

 the guise of Eegulations you should adopt a series of measures that 

 would defeat the very end which, theoretically, they are intended to 

 subserve, which would promote the very business we are endeavoring 

 to restrict — pointing out in every step of their argument, the embar- 

 rassments, the difficulties, the vexations and uncertainties that w^ould 

 attend any effort to enforce any sort of a Code which the learning and 

 skill of the ablest men in the world would be able to prescribe. 



Now a few words on the question of law — on a question of law that 

 like so many questions of law in this case, is, in my humble judgment, 

 quite likely to be mistaken, if considered outside the necessities of the 

 case. — Upon what theory do statutes of the sort we have been perusing 

 ever since yesterday morning take efl'ecf? Says my friend: A statute 

 has no operation outside of the jurisdiction of the country that enacts it. 



That is very true. That is a mere axiom in the law. How then do 

 the statutes protect these seals? They protect them upon either of 

 two theories, either of which is satisfactory — both of which are abun- 

 dantly supported by authority. They go sometimes upon one ground; 

 sometimes upon another. It is immaterial upon which ground they 

 stand, as long as they do stand. A statute — a municipal statute — 

 Mhich has effect of course only within the jurisdiction of the territory, 

 and upon nationals outside the jurisdiction — how does that operate? 

 In the first place, what is the jurisdiction? To begin with, the juris- 

 diction of a nation is to the water line — that is plain enough. Then 

 it has come to be understood and considered that it extends a cer- 

 tain distance into the open sea — the "high sea", for certain purposes 

 only. The general jurisdiction of a nation through its statutory enact- 

 ments does not extend an inch beyond the water line — low water mark. 

 It cannot forbid, for instance, any vessel to sail up as near the shore as 

 it can, assuming that it does no harm. It cannot exclude vessels from 

 coming within three miles that is perfectly certain and agreed upon 



