ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 215 



Dating cruelty, barbarity, constitutes all the malice that is necessary. 

 There is express malice, and there is implied malice. Like many other 

 terms it has a broad acceptation, and the legal accei)tation is not 

 necessarily always the po]jular acceptation. I care not to add this 

 element of malice — it is not my argument — it is not the ground that I 

 have put this case upon. I say, if that is malicious, this is; and in the 

 sense that is, undoubtedly this is. Now take the suggestion made in 

 the course of this argument by Senator Morgan. Suppose instead of 

 cruising about the sea generally, giving these animals what they i)lease 

 to call a "sporting chance" — suppose these sealers were to establish a 

 cordon of vessels just outside of the 3 mile line, and take every seal 

 that came out in the very first season, and bring the whole business to 

 an end: Is that malicious? If this pursuit is not malicious, is that? 

 Why, if in that case, not in this? 



They say: "We have no malice toward the United States people. 

 W^e are after the skins of the seals, and we are making this profitable"; 

 and they would be making it profitable. There is, no doubt at all that 

 any fleet that would go and surround these islands so closely, if the 

 fleet was all owned by one party — I mean by one sealers' association — 

 as to get all the seals the very first year, old and young, male and 

 female, it would be profitable. Is that malicious? It is no more mali- 

 cious than the killing of the seals, as now. It is no more extermination 

 than it is if they kill them in the way they are doing now. Extermina- 

 tion is extermination, w^hether you exterminate them all at once, or 

 whether you exterminate them in a period that runs over three or four 

 years. We shall see, from the history of all the resorts that these seals 

 ever had, how long the process of extermination takes. Now, I enquire 

 is it any less exteimination, because it is spread over three or four 

 years than if it was spread over three or four months? Is it any more 

 malicious when it is done for gain in three or four months than when it 

 is done for gain in three or four years? 



When you come to look at the cases that have existed before, we find 

 they are every one met by the prompt exercise, by the Government 

 affected, of this right of self defence; and we know perfectly well that 

 there is not a country in this world, that has any of this marine or 

 semi-marine property which is the foundation of an industry upon its 

 shores — except the United States, that would permit foreigners to go 

 there and participate in it unless under the Eegulations which are 

 established for it. But is there another country that would permit 

 this extermination, even though not accompanied by circumstances of 

 particular inhumanity or barbarity? 



We have cited. Sir, quite a number of cases in the argument, which 

 at this late stage I shall take no time to remark upon — I merely advert 

 to them in support of a corollary of this general proposition, as I have 

 confined what I have said on the right of self defence to the high 

 seas. 



We have assembled instances enough, and cases enough, to show 

 that the right of defence extends likewise to the territory of friendly 

 nations if it is a necessit3^ Take the case of the "Caroline" in which 

 Great Britain came to the Niagara River, entered a port of the United 

 States (a nation with whom they were at peace, and where the law was 

 in full efl'ect), took a vessel out, burnt it, and ran it over the Falls. 

 There again the question of the necessity became the debatable ques- 

 tion. It is not easy for me to see that it was necessary — any more 

 necessary than it is always necessary for a nation that is at war, or has 

 a rebellion, to pursue its enemy into foreign ports. But the debate 



