ARGUMENT OF GREAT BRITAIN. 33 



the islands, is therefore, it is submitted, without fouudation ; 

 and the exclusive right to take possession does not exist 

 at sea. 



The allegation in Mr. Phelps' letter, that the seal fishery united states 

 is " the property of the nation on whose shores it is carried von, p.^2^7? '^' 

 on," begs the question, and is not consistent with any known 

 principle of law. 



Tlie British contention is that this absence of precedent 

 is fatal to the United States claim, which conflicts with the 

 undoubted right of individuals to fish for seals in the high 

 sea, a right which cannot be diminished or taken away by 

 a Government to which the owners of the right owe no 

 allegiance. 



Nor is the United States contention in any way advanced 

 by an appeal to international law. 



SOITBCE AND FOUNDATION OF INTERNATIONAL LAW. 



It is incorrect to say that the best international law has 

 arisen from precedents that have been established when 

 the just occasion for them arose, undeterred by the discus- 

 sion of abstract and inadequate rules. 



It may be observed that law so made would not be inter- 

 national law at all. International law is evolved by a more 

 just as well as a more tedious process. Its source is thus 

 stated by Kent : 



The sole source of this law, the fountain from which it flows, Kent's |'Cora- 



whether in its customary, conventional, or judicial-customary shape, in'ternatfona'l 



is the consent of nations. Law," 2nd edi- 



. -1 . tion, by Abdy, 



And again: p. 4. 



In cases where the principal jurists agree, the presumption will be Ibid., p. 37, 

 Tery greatly in favour of tlie solidity of their maxims; and no civil- 

 ized nation tliat does not arrogantly set ordinary law and justice at 

 defiance will venture to disregard the uniform sense of the established 

 writers on international law. 



In the case of Triquet v. Bath, Lord Mansfield said: 



I remember, in a case before Lord Talbot, of Buvot v. Bnrbut, upon 3 Burr. 1478 (at 

 a motion to discharge the defendant (who was in execution for not P"^"**^^^* 



performing a decree) " because he was agent of commerce, com- 

 35 missioned by the King of Prussia, and received here as such;" 

 the matter was very ela])oratcly argued at the bar, and a solemn 

 deliberate opinion given by the Court. . . . Lord Talbot declared 

 a clear opinion, " That the law of nations, in its full extent, was part 

 of the laiv of England." ..." That the law of nations was to be 

 collected from the practice of different nations and the authority of 

 writers." Accordingly, he argued and determined from such instances, 

 and the authority of Grotins, Barbeyrac, Binkershoek, Wiquefort, 

 «S:c., there being no English writer of eminence upon the subject. 



I was counsel in this case; and have a full note of it. 



I remember, too, Lord Hardwicke's declaring his opinion to the 

 same effect; and denying that Lord Chief Justice Holt ever had any 

 doubt as to the law of nations being part of the law of Englaiul, 

 upon the occasion of the arrest of the Russian Amb.issador.* 



This extract shows it to have been the opinion of Lord 

 Talbot, Lord Hardwicke, and Lord Mansfield, that interna- 

 tional law is to be collected from the practice of nations 

 and the authority of writers; and that they and Chief 



*The italics in this passage are taken from the Report itself. 

 B S, PT X 3 



