ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 211 



I am sure the Tribunal could not have failed to observe, as we passed 

 along tlirougli some of tbese historic instances, the various suj)posed 

 cases that were made. We will go ba(;k to Mr. Blaine's illustration put 

 forth in the correspondence. Here are the Il^ewfoundland Fisheries 

 belonging to Great Britain or its province, the source of a valuable 

 industry, a great means of subsistence to its people, carried on for a 

 very long time, and i)roteeted by the laws of tliat province. That they 

 have any property in the lish, which does not attach to the shore, out- 

 side of the 3 mile line, they do not claim. None of the conditions upon 

 which we have claimed the property in the seals attach to them. 



Now suppose vessels go there, keeping outside the territorial waters, 

 and proceed to destroy those fish by dynamite or other explosive pro- 

 cesses b}^ which they can be brought to the surface and availed of 

 wholesale, and out of which a iirotit can be made, the necessary result 

 of which is the destruction of tlie fishery, and extermination of the fish. 

 We put the question: Is Great Britain remediless? Have they to 

 submit to that destrnction at the instance of a few fishermen from Cape 

 Cod who can make a profit for a year or two in that way before the last 

 fish disappears? What does my learned friend say to that? He says 

 that would be malicious. He ai)i)arently feels that he touches bottom 

 there. There is an element of malice. Well, let us see; I do not sup- 

 pose the case where an expedition is fitted out to go there for the mere 

 purpose of destroying the fishery. I suppose the case where the 

 Nantucket fishermen can make a satisf\ictory profit out of the business 

 for a year or two, and that is what they go there for. If, then, malice 

 is the express intent to work an injury to a person for the sake of 

 working an injury, it does not apply to that case. These men are there 

 to nuike money, regardless of tiie destruction they are working. 



Now, I agree with my learned friend that it would be malicious in 

 the true definition of that term; not malicious because it is pure malice, 

 but malicious because wanton, reckless destruction is always malicious, 

 and it is not to be redeemed by the fact that a man can make a profit 

 out of doing it. If I fire my gun out of the window into the street 

 without taking any particular aim and destroy somebody's life, I am 

 not to be heard to say, "I did not mean to kill that man; I had no 

 quarrel with him." " Why then did you fire that gun out of the window ?" 

 " Because somebody told me he would give me £5 if I would. That is 

 what 1 did it for. I had no wish to injure anybody. I could make a 

 profit out of it. " Does that exonerate me from that malice which to a 

 certain extent must always exist to make a man criminally liable? It 

 may not be murder, it may be modified to the degree of manslaughter, 

 but that I should be criminally responsible for the act in some degree 

 of the law of homicide is plain enough; it is not in the least modified 

 by the gain. 



Now in that case, my learned friends do not undertake to say that 

 Great Britain has no right, that all she could do would be to go and 

 invite the United States to enter into a treaty by wliich she would keep 

 her people at home. They may not be subject to the jurisdiction of the 

 United States. Tliey may be wanderers of the sea, subject to no par- 

 ticular jurisdiction, like some of the bands of renegades tliat were broken 

 up by President Monroe and another President in the cases we have 

 cited. It is not piracy. As my learned friends well argue, it does not 

 come within the definition of piracy, to destroy fish by dynamite. Is 

 there tlien any right of defence or protection, or must tlie Government 

 sit down and permit the fishery to be destroyed? Apply that to the 

 business of quarantine. Quarantine laws are in force within the terri- 



