i98 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Did they throw the sea open to consequences that were detrimental to 

 themselves; or did they retain, have tliey always retained, and is the 

 whole law of the sea based upon the principle of retaining in the mari- 

 time nation, all that is necessary to the protection of its rights! 



Senator Morgan. — Now, Mr. Phelps, if you will allow me, I wish to 

 ask your opinion about this; whether, in throwing open a sea (as you 

 have just described), it was thrown open to individuals operating upon 

 their private account and without the authority of the flag, or the 

 license of anv nation; or was it thrown open to the sovereign nations 

 of the world? 



Mr. Phelps. — That is a point I shall try to address myself to, Sir. 



Now, let me state the proposition that I venture respectfully to assert 

 with some confidence, as being the result of the whole law of the sea as 

 it exists to day, and of all the application to luinian aifairs it ever has 

 had: — That the nations that formerly controlled the sea never surren- 

 dered the right of self-protection which extended to all their interests 

 that were valuable enough to be protected, whether in peace or in war, 

 whether industry, or commerce, or trade, and that the time never has 

 been when an individual (which may perhaps meet the point of your 

 question which you have just put) — the time has never been and the 

 illu.stration is not to be found in any rule of law, when an individual 

 could engage in any j)ursuit, for the purpose of gain on the high seas, 

 that worked a serious injury to the interests of a maritime nation, even 

 though the pursuit in itself and of itself, if it had not had such conse- 

 quences, might have been unobjectionable; even if it is the pursuit of 

 something on the sea from which a gain is to be realised, and which in and 

 of itself does no harm. If the consequence of that is the serious injury 

 or affection of a national interest, that nation never has surrendered 

 the right to i)rotect itself against that consequence, and for that busi- 

 ness the sea is not free. 



Then I go further; I have spoken of innocent occupation. If the 

 thing that is sought to be done upon the sea is in itself wrong; inhu- 

 man, barbarous, immoral; if it violates those general principles of law 

 that are enforced in all civilization; if its tendency is not merely to 

 injure the interests of the nation, but to injure the interests of mankind, 

 as in this case, by the extermination from the earth of a valuable 

 animal; then that of itself renders such conduct unjustifiable, and any 

 nation who is affected by it may resist it. No nation can constitute 

 itself the censor of the morals of the world. No nation can go out 

 upon the high seas upon the errand of enforcing the general laws of 

 humanity, because it is not invested with that paramount authority 

 over other nations; but the moment that conduct touches the interest 

 of the nation — the moment it becomes, so to speak, the business of that 

 nation to resist it; at such moment it can resist it. I shall try to make 

 myself clear on this initial point, and I shall not have to refer to it 

 again, that the proposition I venture to suggest in respect to the limit 

 of the freedom of the sea rests upon two branches, each of which, 

 standing alone would be sufficient, and both of which in this case 

 concur. I say in the first place that a pursuit that is innocent of 

 itself, but does have destructive or gravely injurious effects upon the 

 interests of a maritime nation, may be prevented. I s<iy, in the next 

 place that instead of being innocent and unobjectionable, and some- 

 thing that nobody but the nation affected could object to — if it goes 

 beyond that, and is indefensible in its moral character, in its humanity, 

 and is destructive of the interests of the world, as well as of the interests 

 of the nation, and violates those principles which aU nations, as far as 



