ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 323 



Appropriate time the reference did not liappen to be in Court, and later 

 til an that the convenient time did not come. I allude to it only for a 

 single remark. It is the subject of the Newfoundland Fisheries, as they 

 were spoken of in the United States Argument, and to which my learned 

 friends made quite an elaborate reply, citing from Lyman's Diplomatic 

 Correspondence, and some debates in the British Parliament. I de- 

 signed to review that but time does not allow. I only wish it shall not 

 be understood that we have asserted anything in this argument that 

 we find it necessary to withdraw from. The statement, which will be 

 found supported by the quotations in the Appendix, is strictly accurate 

 in every resjiect. The Fisheries were granted to the Americans in the 

 Treaty of 1783 after the Revolutionary War, not because they were open 

 to the world, but because they were open to American and British sub- 

 jects; and it was conceded on both sides in that correspondence, except 

 for a single observation of Lord Bathurst in passing, who had nothing 

 to do with the negotiations, which is evidently a mistake on his part. 

 There is nothing to contradict that. It was conceded that these Fish- 

 eries, far out into the sea, at that time belonged to Great Britain, and 

 only as British subjects could the United States take part in them. It 

 was held so for a long time, and I think the rights of France now are 

 under a similar arrangement. Wliether they have since been thrown 

 open to the world, is another question into which I do not care to enquire. 

 I only allude to it for the purpose of asserting respectfully the strict 

 accuracy of the position taken on that subject in the United States 

 Argument, whether it has much or little to do with the questions we 

 have discussed. 



This, Sir, is the case of the United States Government; how imper- 

 fectly presented, as far as I am concerned, no one here knows as well 

 or feels as sensil)ly as I do. It is a case, Sir, that no American need 

 blush for. Its broad propositions of law, its absolute trutli fulness of 

 fact, its honest and straightforward procedure, seeking no advantage 

 and taking none, are all before the Tribunal and before the world. We 

 stand upon the justice of this case. We have not found it necessary 

 to admonish you to beware of justice, of morality, of right, or to i-efrain 

 from doing the plain thing that on the face of this whole business ought 

 to be done, lest some far-sought and imaginary abstraction of theoretical 

 law might possibly be violated. That is not our position. We have 

 invoked justice. We have asserted that it is the only principle on 

 which international atfairs can proceed or ought to proceed; and it 

 will be a sad day for the world if it ever reaches a contrary conclusion. 



The controversy that is involved here, like all human controversies, 

 is transitory. It will soon pass aivay. If this herd of animals is to be 

 exterminated, the world will learn to do without it, as it has learned to 

 do without many things that are gone; but the questions, the real 

 questions, to which the attention of the world will be directed, — what is 

 the rule of conduct that international law prescribes in cases of new 

 impression between nations; what is the freedom of the sea; what are 

 its limits; what does it justify; what does it excuse, — those are (jues- 

 tions that will remain. On the immediate issue of this controversy, 

 the decision of the Tribunal will be final. These great nations have 

 agreed to make it so; and what they have agreed to do, they will do. 

 On the larger question I have referred to, tlie decision of this Tribunal 

 is not final. From that there is an inevitable appeal to the general 

 sense of mankind. None will be more gratified, I am sure, than the 

 members of this Court, that it is so; that the opinion of jurists, of 

 lawyers, of publicists will follow with interest, and approve or disap 



