318 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



vessel ^ets home from its long cruise, then transmit them and depend 

 upon tlie Provincial Government to institute such an action and press 

 it in sucli way and with such evidence as will enable the Court to do 

 iustice. I do not assume for a numicnt, — 1 do not permit mj'self to 

 assume that the Court will not do justice; but I never knew a Court that 

 could do justice except at the instance of a plaintiff or prosecutor. 

 That is the lirst requisite; and evidence is the next; and until a ])ros- 

 ecutor takes up a case and presses it to prose(;ution, and furnishes the 

 Court with the requisite evidence, no Court in the world can execute 

 any justice in any case, civil or criminal. 



Lord Hansen. — It seems to me there ought not to be any difficulty 

 about this. What you say is true, but you must remember the Ameri- 

 can Government would have Agents in the place where the trial would 

 take place, and probably would conduct the prosecution. 



Sir John Thompson. — And the same question arose under themodns 

 Vivendi. The prosecutions there were in the British Columbian Courts. 

 They were taken by Her Majesty's Officers. 



Mr. TuppER, — And condemnation followed. 



Mr. Phelps. — Yes. 



The President. — One of my Colleagues has justly pointed out to 

 me in all such international cases, in the case of the Convention for 

 Submarine Cables and the North Sea Fisheries, the mode of prosecu- 

 tion is i)rovided for in such a way as that the course of justice is sure 

 to have its way. 



Sir Charles Eussell. — And in each case it is handed over to the 

 powers of the nationals it represents, as is provided in the modns vivendi. 



Mr. Phelps. — There is a very great diifeience, allow me to observe, 

 between vessels seized in that part of the world where tp carry tlieni 

 into an immediate port is easy, and where escape is impossible. I deal, 

 not with a theoretical diflicnlty, but with a practical one. The difficulty 

 is in getting the vessel into the juiisdictiou and getting the case before 

 the courts. It is a practical ditticulty. 



Mr. Justice Harlan. — According to your view then, the only differ- 

 ence in the vessel which is seized in Behring Sea, is whether you shall 

 take that vessel to the nearest American port, or the nearest British 

 port. 



Mr. Phelps. — Yes, or nearest British or American vessel. 



Mr. Justice Harlan. — 1 did not mean to say that that could be done 

 without, perhaps, some further legislation. That may or may not be. 



Mr. Phelps. — No, I shall not take up much time in dealing with a 

 subject that does not depend upon evidence, and which the eminent 

 jurists and lawyers I am addressing are entirely masters of, and do not 

 need instruction from us upon. But I have an observation or two 

 further to make about this. As I have said, if a vessel is condemned 

 in the United States, by the operation of prize law, the judgment is 

 not conclusive; but if the vessel is taken into British Columbia and 

 is not condemned and is discharged, it is conclusive, as far as I can see, 

 practically; 1 do not see how the American Government practically 

 could deal with such a question. 



Another question. We get these proceedings for the protection of 

 maritime rights arising in one way or another, so long as they are rights 

 under the usages of nations — we derive them by analogy. 



Now in what case, I respectfully invite the Tribunal to consider, when 

 a vessel exposes itself to seizure by violation of any maritime right, no 

 matter what it is — in what case is it known that the vessel is not con- 

 demned in the country of the captor ^ If you choose, of course, in 



