542 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 



Sir, of course" it does not in any way weaken liis argument, provided 

 it be iu accordance with recognized principles, that it should be for the 

 first time asserted; but when, as I shall have to show you later on, it is 

 in contiict with principles of international law, universally asserted and 

 universally recognized, it is no small argument which my learned 

 friends have to meet, that they are not able to point to a single case iu 

 which the action of a State complained of has been justified on the 

 ground that it was carrying- out the provisions of municipal statutes 

 which were supposed to speak and intended to speak originally only as 

 regards the nationals over which, of course, they had authority. 



Therefore, Sir, though upon an argument based upon the past pro- 

 ceedings of five or six years negotiations between the United States 

 and Great Britain, an argument based upon the fact tliat in its incep- 

 tion these vessels were seized because they had broken municipal 

 statutes, the men were imprisoned, fined and turned adrift penniless, 

 because they were supposed to be criminals, according to the nniuicipal 

 law of the United States, though in the inception that was the case, it 

 may be said if the right existed, it can now be justified on other grounds. 

 Possibly; but it does form a strong argument for our contention if we 

 are able to point to the fact, that jirior to the filing of this written Argu- 

 ment the suggestion that a municipal statute operates against all the 

 world, as an authority which the world is bound to obey upon the 

 ground that the State can enforce it on the high seas at its discretion 

 is an argument which is absolutely new both in point of international 

 law and, so far as I know, according to diplomatic relations. 



The Tribunal here adjourned for a short time. 



Sir EiCHAKD Webster, — Mr. President, I mentioned that I had two 

 other cases to which I wished to call attention in this connection, and 

 one is merely to refer to a passage in the United States Argument, page 

 149, where Mr. Phelps having cited the case of the Queen v. Keyn says: 



The opinion of Chief Justice Marshall, and the language of Lord Cockburn above 

 cited very clearly illustrate the distijictiou between a municipal statute and a defen- 

 sive regulation. 



If that is merely an expression of Mr. Phelps's opinion, I have no 

 right to criticise it, but 1 must be allowed to say that if it is intended 

 to be a statement that Chief Justice Cockburn ever recognized a 

 municipal statute as being equivalent to a defensive regulation, or that 

 he supported the view that the making of a statute was supposed to be 

 an expression by a nation of an intention to do an executive act which 

 the nation would undertake on its own responsibility, I appeal to the 

 judgment in the Queen v. Keyn. There is not one word to support that 

 view in the passage read by Mr. Carter, which will be found at page 79 

 of the report which I think the members of the Tribunal have- seen in 

 the pamphlet form — the authorized edition. 



Chief Justice Cockburn was referring to legislation and to legislation 

 only, and he says iu terms : 



Hitherto legislation, so far as relates to foreigners iu foreign ships in this part of 

 the sea has been confined to the maintenance of neutral rights and obligations, the 

 prevention of breaches of the revenue and fishery laws, and, under particular cir- 

 cumstances to cases of collision. In the two first, the legislation is altogether irre- 

 spective of the three-mile distance, being founded on a totally difterent principle, 

 namely the right of a State to take all necessary measures for the protection/)f its 

 territory and rights, and the prevention of any breach of its revenue laws. 



And in that passage, cited more than once by my friend ]Mr. Carter, 

 and referred to in this passage in Mr. Phelps' argument, it will be found 

 that there is no trace of foundation for the suggestion that the Statute 



