304 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 



will be able to go on and perform its work with impunity. I do not 

 deny that as a general proposition penal statutes of tbis kind cannot 

 operate outside the territory except as against nationals, but I do deny 

 that tbat consideration gives impunity to tbe foreigner. I deny tbat 

 if these two ships should go together the foreigner would be exempt, 

 that he would simply be told that he may go on with his work, because 

 there is no i)0Vver to prevent him; and having received the assurances 

 of distinguished regard from the courteous commander of the man-of- 

 war, all the rigours of the law would be reserved for the British citizen. 



That is directly the converse of the action of Great Britain in all 

 cases. I take it that the rule is this, that while the statute itself would 

 be ino])erative, perhaps, as a statute outside the Jurisdictional limits, 

 against an alien and foreigner, the rule of self-defence steps in, and 

 under a changed name and a different theory the wrong is prevented, 

 and that the Freiulnnan, or the Italiau, or the German, would lindthat 

 his fate was not improved except that he would be stopped on general 

 principles of defence, whereas the other Avould be simply told, there is 

 a statute passed by your own nation, you are subject to the penalties 

 which it affixes. If so, we are dis])uting about v>'ords. It must be so, 

 because it is impossible that Great Britain should be willing to say to 

 the whole wcnld : " You have an advantage over our people, and all you 

 have to do, when you invade our fisheries or our schools of seal, is to 

 produce the opinion of distinguished counsel, backed up by decisions 

 of the English Courts, that English statutes do not apjsly to any but 

 nationals, and the property is at your service". That is impossible. 

 Therefore, I say that this is more a debate on words than a question of 

 principle. If the statute (Just as our statute passed to protect our 

 seals in what we consider our own waters) is a reasonable one, under 

 the circumstances, it may be adopted by the United States, as a simi- 

 lar statute may be adopted under like circumstances by Great Britain 

 or any other nation as the measure of repression for the wrong which 

 it is intended to prevent. And if our friends say that the statute does 

 not apply, then I ask do you mean that foreign nations have a license 

 to plunder your oyster beds or slaughter your seals, when that per- 

 formance is interdicted to nationals'? 



What name Avould such legislation deserve if adopted by a proud, 

 enlightened, aggressive nation that has never suffered a wrong to one 

 of its nationals to go unredressed! Are you not inevitably reminded, 

 when such a theoryis broached, of Shakespeare's Bottom, who invented 

 a new animal, a lion that would " roar you gently as any sucking dove". 

 No, Sir! Great Britain has never, and I hope the United States will 

 follow her example, discriminated against her citizens, but she has 

 always exalted the position of a British citizen. Just as high as human 

 power could do it. 



In the abstract then I am not disposed to quarrel with my distin- 

 guished friends about their views on this point. We will concede that 

 their propositions of law, as considered in the abstract, are sound and 

 that we cannot legislate for foreigners outside our Jurisdiction; and 

 yet they will be compelled to admit tliat even if this be so, the right of 

 self defence is not imiu'rilled, impaired, or diminislied. 



This right is not based upon the fact that the oyster is on the ground ; 

 or that the coral is on the bed of the sea. It is based upon the fact 

 that there is an industry of the nation legitimately belonging to its 

 creator and born to yield its fruits to those wlio have made fruits pos 

 sible by industry, by care, by protection. How is the freedom of the 

 sea saved (if it is invaded by our contentions), because the oysters live 



