ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 141 



Britain, and yet decide that we possess tlie right we contend for, Her 

 Majesty's Government has gained nothing- by such a decision. This 

 will be seen u])on a moment's reflection. But, as I said, they are not 

 without their importance. In the first place, they are propounded in 

 the Treaty, and a specific answer is requested, a request that it will 

 be, of course, the desire of the Tribunal to comply with, if they find 

 themselves able to determine the questions. 



Lord Hannen. — It is more than a question. It is required. 



Mr. Phelps. — I think that is correct, my Lord. I used the word 

 because I supposed all that was desired of this Tribunal was expressed 

 in that sense. Although the request comes from a nation, it is but a 

 request, at any rate to those members of the Tribunal who owe no 

 allegiance or service to either of the contending nations. Ordinary 

 diplomatic courtesy would require that the invitation to decide these 

 questions addressed to eminent gentlemen not belonging to either of 

 the two contending countries, should be put in the form of a request. 



Lord Hannen. — I was only referring to the words of the Treaty— 

 ''shall". Itis difference between "may" and "must". If you discharge 

 your duties you must answer these questions. 



Mr. Phelps. — I am quite aware of that my Lord, and in using the 

 word "request" I used it in the sense your Lordship gives, which under 

 other circumstances might have been called "requires." They must be 

 answered, and not only that, but whether they are to be answered or 

 not specifically, even if the Tribunal can construe this Treaty to admit 

 of their passing them over in silence, nevertheless they need to be 

 considered, because in our estimation, and as we shall contend, the 

 answer to them, or the facts upon which the answer depends, strongly 

 corroborate and confirm the American title. 



As I have said before, our learned friends were extremely dissatisfied 

 that we did not rest our whole claim on the right to shut up Behring 

 Sea, and then rest our right to shut up Behring Sea upon the former 

 usage of Kussia. We have declined both these propositions. We do 

 not claim, as you have long since perceived, to shut up Behring Sea. 

 We do not claim that Russia ever claimed the right to shut up Behring 

 Sea; nevertheless. Sir, in respect to what Russia did claim, I shall, 

 briefly I hope, invite your attention this morning. 



There is no human right of property, I respectfully suggest, direct or 

 indirect, — which is not influenced, controlled and ultimately determined 

 by what is called prescription, occupation and the flight of time. How 

 far that applies between nations I shall consider presently. I state now 

 the general principles of municipal law, and a principle which finds its 

 analogy, as far as it is possible to find it in international law. It has 

 been eloquently said by a countryman of my learned friend the Attor- 

 ney General, whose countrymen have said so many eloquent things, 

 that in the policy of the law the hour-glass which Time is represented 

 as holding in his left hand, takes the place of the memorials and the 

 evidence that the scythe which he carries in his right sweeps away. 

 It is a figurative, still it is an exact statement, iu my apprehension, of 

 the foundation and the result of this policy of the law; and, there- 

 fore, although in this instance we have expressly disclaimed reposing 

 the title of the United States on the former occupation and claims of 

 Russia, although we have preferred to rest it upon the stronger, the 

 more equitable, the clearer grounds that, as it seems to us, it stands 

 upon in their own right, and not in any derivative right, it is neverthe- 

 less true that the position they take derives the strongest coiToboration, 

 confirmation and support from the previous history of this subject, and 



