ORAL ARGUMENT OP FREDERICK R. COUDERT, ESQ. 299 



If we study this question, this development of the rule of the freedom 

 of the sea, a principle which was long opposed by some of the wisest 

 and best jurists in Great Britain, we will find that it was for the pur- 

 IDOse of the protection that it afforded to all nations, but never as a 

 vehicle for wrongdoing: and so far as freedom of the sea is concerned, 

 if we have there any rights, the doctrine of freedom of the sea, and the 

 shibboleth that the great ocean belongs to all people to do what they like 

 thereon,have nothing whatever to do with the discussion of this question. 

 Wrong is not made right because a man is in a ship. Eight does not 

 abdicate because it steps upon the quarter deck of a man-of-war, or of 

 any other vessel. Eight is right, on land and on sea; and the expan- 

 sion of civilization makes that proposition clearer and more applicable 

 every day. 



Then it comes to this: We have an industry, we have property, on 

 the land. That property is ours. It is appurtenant to our soil. These 

 animals, different in that respect from absolutely domestic animals, go 

 out for food. Killing a mother kills the puj) upon our soil. May we 

 not prevent if? What is there that forbids that we should invoke these 

 ordinary principles of right! There is nothing new about it. A wise 

 man, many years ago, said, "There is nothing new under the sun." 

 There is very little new in law. Of course codification may introduce 

 by express enactment new ideas into thecodethat governs a municipality 

 or a nation; but when we are dealing with these great questions that 

 do not depeiul upon written law issued by one nation for the govern- 

 ment of its citizens, we must look to those broad principles which pro- 

 hibit wrong and encourage right, and are common to all the civilized 

 nations of the globe. The question is, What is right? Is there any- 

 thing new in our claim; and if so, what? In what respect is this new? 



Lord Coke, I think it was, once >^aid that in all his judicial experience 

 he had never had but one or two questions of common law that troubled 

 him. Why? Because it was founded upon usage, upon that usage 

 which was accepted by all the intelligent, civilized persons who com- 

 posed the nation. It was founded on custom. It was founded on right. 

 Sometimes the right of today grows with time so that it becomes scarcely 

 recognizable. Sometimes that which is permitted today, as in this case 

 the killing of individual seals with a spear, becomes wrong and crim- 

 inal if done in such a Avay as to destroy a race of animals; but all we 

 ask is not the application of new, but the application of old, principles 

 to this case. It is not a new case in any sense, except that by the nature 

 of this animal it is stronger than any other that can be adduced. That 

 is all. In that it is different. It is difterent because the habits of this 

 animal are so nearly akin to those of a land and domestic and tame 

 animal that the analogies taken and given in our briefs fail to cover the 

 case. They are too narrow. We go beyond them. If those illustrations 

 are good, a fortiori are we right; but even if they failed in any sense, 

 still we may be right because the animal with which we are dealing is 

 so difterent in important respects, all favorable to us, that you can 

 apply-a rnle not new in its principle, but new in its application. And 

 how are these rights to be enforced? There is only one of two ways: 

 either to do as the United States began to do, to do as Eussia has 

 insisted upon doing, to say: This is our property; no one shall inter- 

 fere with it — or, to come before you, not abandoning or waiving one 

 iota of our original position, but as Mr. Carter so eloquently stated 

 yesterday, to avoid all possibility of collision, submitting our conten- 

 tious to an impartial and enlightened court, and praying that it may 

 lay down a principle which will go far beyond our necessities and the 



