ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 319 



making a Treaty, to make a different provision, that binds the parties; 

 bnt 1 Avonld respectfully snbmit to His Lordship, with his very large 

 experience in this particular branch of the law, more probably than has 

 fallen to the lot of either of the other members of the Tribunal, even 

 of Mr. Justice Harlan, — in what case, unless a Treaty provides for it, 

 is a vessel that is seized for a violation of a maritime right of a nation, 

 carried any where else? 



Lord Hannen. — Will yon allow me to make an observation? I have 

 already indicated what I am about to say, that I do not recognize there 

 is any such thing as prize law, except in the case of war; and you are 

 asking ns by our regulations to give you the same right in peace as 

 there would be in war. It is nothing to the purpose. There are cer- 

 tain courts that have prize jurisdiction. Prize law properly speaking 

 only arises in case of war. 



The President. — As admitted by other nations. 



Mr. Phelps. — I quite concur in his Lordship's remark that prize law 

 is applicable to a belligerent state. 



Senator Morgan. — That is a somewhat recent idea. Prize law origi- 

 nated not in a state of war, but originated in the right of reclamation 

 and in rejnisal. 



Marquis Venosta. — I thiuk that by the convention for the protection 

 of the submarine cable, a public official has the right to ask for the 

 papers that make a record and to denounce the offender. That right 

 is admitted by the provisions of the Treaty. 



Sir Charles Eussbll. — It is so, and I do not think my learned 

 friend has realized what is the effect of taking the ship's papers or 

 indorsing the ship's papers. The moment that is done, when the ship 

 makes for any port, she cannot get out of that port without clearing 

 and without the assent of the authorities, and if she has no papers, she 

 is in the jurisdiction of the Local Court, whatever it is, there, and may 

 be seized for the offence indorsed upon the pai)ers. 



Mr. Phelps. — I was only going in conclusion to advert to the lan- 

 guage of the proposed Eegnlations, in reply to Lord Hannen's sugges- 

 tion that in case of any such capture the vessel may be taken into any 

 port of the nation to which the capturing vessel belongs, and condemned 

 by proceedings in any Court of competent jurisdiction, which proceed- 

 ings shall be conducted, as far as may be, in accordance with the 

 course and practice of Courts of Admiralty when sitting as prize Courts. 

 It is proposed that the jurisdiction should be given that is analogous 

 as far as may be necessary. 



Of course, I do not suppose that in the strict technical language of 

 the law, a vessel of this sort would be regarded as prize — that is quite 

 unnecessary to discuss. It is taken under the provisions of the 

 Treaty; but. Sir, I do not care to pursue this subject. 



Mr. Justice Harlan. — Before you leave that, I want to ask Sir 

 Charles Eussell whether he doubts the power of the Tribunal to put 

 into our Eegnlations, if we get to EegulatioMs, some such clause as is 

 in the modus vivendi of 1892. I do not understand you, Sir Charles, 

 to disjuite our power to do that, but to insist that that would be inef- 

 fective till supplemented by legislation. 



Sir Charles Eussell. — You have understated our submission, Sir, 

 as explained by both myself and my learned friend. Sir Eichard Web- 

 ster. Our position is this, that when the Eegnlations are laid down by 

 this Tribunal each Power is bound to respect those Eegnlations and 

 bound to give effect to them by legislation of their own; but that is 

 not in the power ot this Tribunal, what legislation the particular 



