ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 543 



is to be construed as being otherwise tliau a Statute, convenient, use- 

 ful, and intended to operate upon, and affect foreigners in tlie cases iu 

 wliicli foreigners liave become subject to municipal laws. 



Kow, Sir, the only other case I need mention in connection with this, 

 is to repeat a criticism which I interlocutorily made with reference to 

 the statement on page 150 of my friend's Argument that the judgment 

 of the Supreme Court of the United States in the case of the "Sayward", 

 supports this position. 



My friend Mr. Phelps was good enough to mark for me some five or 

 six pages of the authorized Keport irom which the Attorney General 

 had read, in which Mr. Phelps said would be found the passages which 

 he suggested indicated the view of the United States Courts upon this 

 matter. The passage began at page 13, and ended at page 22. I have 

 read and re-read that passage most carefully, and, speaking of this 

 judgment as a judgment to which the world might look hereafter in 

 investigating the question, I do not hesitate to say that except the 

 suggestion that i)0ssibly a Court might not think itself justified in 

 examining an executive act, there is not any passage that supports the 

 view that a Municipal Statute is to be regarded as a defensive regula- 

 tion. I felt it my duty to repeat this, because Mr. Pheli^s was good 

 enough to shew me the passage upon which he relied. When he comes 

 to reply, I ask the Court to judge between us by listening to any pas- 

 sages from the judgment he may read, and see whether there is any 

 foundation for the suggestion that the United States Courts have ever 

 said, directly or indirectly, that a Municiiial Statute would be con- 

 strued, as against foreigners, as a defensive regulation. 



Now, Sir, the next group of authorities cited by my friend Mr. Phelps 

 run from pages 152 to 155. They are such cases as the Amelia Island, 

 the "Caroline" and the Appalachicola River, and they are either cases 

 of war, or warlike operations. Again I have to observe — I am aware it 

 is repetition, but it is necessary — that this is the first occasion when it 

 has been contended that according to International law, there is no 

 distinction between times of war and times of iieace. We may be only 

 students — some of us only have the right to speak as students — but I 

 submit the merest student in International law is taught the broad dis- 

 tinction what are rights in time of peace and belligerent rights, and 

 there is, so far as I know, no warrant for the argument or i)remise 

 which lies at the root of my friends Mr, Phelps' argument, when he 

 states that rights which have hitherto been regarded as belonging only 

 to nations when they are in a state of belligerency are to be exercised 

 as defensive regulations, or as executive acts of defence in time of 

 peace. If that were to be the true view of the matter, a great deal of 

 the learning which has been expended in drawing a distinction between 

 rights of belligerents and rights in time of peace has been wasted, and 

 thrown away. But I am obliged to deal, and do deal, with this argu- 

 ment, treating it with all the respect I can, but I am desirous of point- 

 ing out that from my reading and from my examination of the instances 

 cited, they were, in every case, instances which a nation justified on the 

 ground that it was either j)utting down a rebellion, or engaged in war, 

 or that the acts it was performing were acts which it was justified in 

 undertaking on the ground that marauders or robbers, were setting up 

 either in the territory or in close proximity of the territory a hostile or 

 marauding band. I need not do more than remind you that is no anal- 

 ogy to the case which we are discussing, assuming I am right the United 

 States have no property in the seal or in the seal herd, and no right to 

 prevent other persons from shooting, catching, or otherwise capturing 

 the seal on the high seas. 



