OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 125 



shall state in a moment. It is a part of the defence of the conntry 

 which is in the hands of its Government, which may be legislated upon 

 nndonbtedly, but which whether legislated upon or not, must always 

 be enforced by the executive department of the Government, which 

 has control of the arm of the national force. Because as the writ does 

 not run on the high sea except as against nationals, and the sheriff of the 

 county or the marshal of the district cannot go there with his process, 

 when such a regulation is enforced at all, it must be enforced by the 

 executive power of the Government. Because the right of self-defence 

 is declared to be the paramount right. It is not merely the right of 

 an independent nation; it is the paramount right to which all otliers 

 give way. 



It is the first duty of the executive, in the necessary case and by the 

 proper means, to exert the arm of power to protect the interest of the 

 Government; and that duty would be not the less if the legislative 

 Department of the Government had failed to interpose. It would still 

 remain. On the other hand, it is not lost if the legislative Department 

 does interjwse. As it is not necessary that they should confer it, so it 

 is impossible that they should take it away. But the propriety of a 

 statute in such a case, the necessity of which does exist, is in order to 

 make the act which is necessary likewif^e reasonable. It is not the 

 statute that makes it necessary ; the necessity comes from without. The 

 statute neither gives it nor takes it away; but when as against another 

 nation the act of defence is exerted, it must not only be necessary, it 

 must be reasonable. Keasonable in the manner of its exercise; reason- 

 able in the thing that is done. Where the necessity of a case will be 

 answered by capturing a ship, for instance, and bringing it in, a nation 

 is not to sink that ship into the ocean with all on board, to burn it, to 

 execute or even to imprison, as has been well enough said by my learned 

 friend in reference to a judgment in this case that I shall have occasion 

 to allude to. The manner of the self-defence, even when the necessity 

 is conceded, must be reasonable in view of the usage of nations as far 

 as there is a usage that applies, — reasonable in its adaptation to the 

 necessity, not transgressing the necessity; just as in the case of indi- 

 vidual self-defence where the necessity for it arises, it must stop when 

 the exigency is met. 



Now, one of the incidents that must always attend, and the least 

 reflection will show that it is an iudispensable requisite, is that before 

 measures of force are resorted to in defence of a nation, reasonable and 

 proper notice, or information shall be given to the world of the objection 

 that exists to what is being done, and of the regulation or the defence 

 that it is proposed to exert. Why, it was a part of my learned friend's 

 argument, in dealing with these seizures in the Behring Sea, "You 

 have seized these vessels without giving notice to Great Britain that 

 you were going to do so ". Well, if that had been true, I mean by that 

 if the facts that had taken place did not amount to sufficient knowledge, 

 there would be great force in my learned friend's suggestion. This was 

 the very point that, as I have remarked this morning, was the infirmity 

 of the seizures that were made by Eussia of tlie Canadian vessels for 

 sealing. A vessel came there with no notice whatever that sealing in 

 the high sea was going to be prohibited, and it had not been prohibited 

 elsewhere; and the first warning that the vessel had was this seizure. 

 Eussia may well say that it was necessary to do it. " We cannot ]>re- 

 serve this industry in any other way ". " Yes, but is it necessary that 

 you should resort to the extreme measure of capture of a vessel before 

 you had given notice not to do here as they could do elsewhere, and had 



