126 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



given them a fair opportunity to withdraw", as it is presumed that they 

 would with(iiaw when they found that the nation affected objected to itj 

 then when they dechned to witlidraw and persevered in face of the 

 objection and the notice, it woukl be time to go a step further and 

 enforce your Eeguhitions by actual seizure. 



That is what a statute does, and tliat woukl be the weakness of the 

 position of the President of the United States, if without any act of 

 Congress which by its publicity gives notice to the world, without any 

 proclamation or declaration he sends a vessel of the navy which is 

 under his command to seize a vessel and bring it into Court. It may 

 be necessary that measures be resorted to to stop the depredation of 

 that vessel, but it is not reasonable that it should be done until notice 

 has been given to the nation or to the vessels of the nation, and there- 

 fore you see transpiring in this very correspondence, that whenever a 

 statute of that kind is passed, or a proclamation of that kind is made, 

 the Government whose vessels are abroad and likely to be alTected by 

 it, immediately give notice. It becomes then the duty of the nation 

 who finds that these acts are forbidden, to give notice to its sulijects, 

 and to inform them that if they go on they go on at their own risk; 

 unless the nation prefers to take the giouiid of insisting that such a 

 statute is inoperative, and that it will not submit to it and that it will 

 iustify and back up its vessels in disregarding it. 



If the nation chooses to take that ground, that is one thing; but if it 

 is not proper to take that ground, if it is even uncertain whether it will 

 justify itself, or whether as a matter of policy, even aside from the 

 question of right, it will go that far, then it gives notice to the sliips, 

 "you must beware". That is the object of the statute. .Another 

 object that makes it reasonable is this: — it is not reasonable to ask 

 nations to refrain on the high seas on the grounds that the acts they 

 do there are destructive to a national interest, when the subjects of the 

 nation that demands it are not required to refrain, though their action 

 would be just as mischievous. No nation could justify that. When 

 the objection of the nation is the killing of these animals, at such times, 

 in such places, and in such manner as is destructive, and, we insist, as 

 a matter of national defence, that the subjects of other nations shall not 

 do it, we cannot justify that proposition if we permit our own citizens 

 to go out and wreak the very destruction which they object to in other 

 people. Therefore, as the first step in the reasonableness of such a 

 proposition or regulation as that, you must show that we have pro- 

 hibited it to our own citizens. That we have made it a crime wherever 

 our writ runs; wherever the jurisdiction of our Court reaches. 



The next thing is that we give notice to the world, by these public 

 statutes, that we propose to require other nations to desist from doing 

 that which is a destruction of our interests, and which we have made 

 criminal as against our own citizens. Then the foundation is laid for 

 saying that such an act is, in the first place, necessary, which, of course, 

 remains to be seen, and which the nation takes the risk of. In the first 

 place it is necessary, and in the next place it is made reasonable when 

 we have required our own citizens to abstain, at whatever cost or detri- 

 ment and when we have notified to the world what we propose to do. 

 That can only be done by a statute; I mean, the first of those requisites 

 can only be done by a statute, restraining their own citizens and their 

 own ships; and the statute, though not the only means of giving notice 

 to the world, is, perhaps, the best means. Then, suppose that Congress 

 or Parliament, perceiving the necessity of such restriction, passes such 

 statutes, it still remains for the executive of the country to enforce them, 



