ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 305 



upon the bottom of the sea and never frequent the shore? In order to 

 reach them, must you not go upon the sea? Must yon not go below 

 the sea? Must you not protect the sea? Is not the surface of the sea 

 the sjiace that you must guard in order to guard the property beneath? 

 It is true there is the difference that the oysters never frequent the 

 land. There is this difference in our favour, because, to that extent, 

 the seal is a land animal and, to the extent that I have stated, it is a 

 domestic animal. 



I hope that this discussion has not wearied the Court or been entirely 

 without value if it has shewn, what I take to be the fact, that we do 

 not really differ upon this question, but that, upon the substance. Great 

 Britain and the United States are agreed; and France would be agreed, 

 for her interests are the same and her conduct identical, — that any 

 national industry, even upon the sea, is to be protected, and that the 

 right of self-defence may properly, fairly and legitimately be iuvoked 

 Avhenever that industry is attacked. There are only two conditions 

 attached to that; first, is it necessary to use measures of self-defence? 

 And, in the second place, are the measures proi)osed reasonable? If 

 both those questions are answered in the affiriuative, then the executive 

 act which puts resistance in motion and which vindicates national right 

 is complete, is justified and is law. And it is law that we want. Law 

 in its best sense, in its highest sense, in its most moral sense; the law 

 that would be expected not from a Statutory Tribunal, not the law that 

 would be expected from one nation or the other, confined within narrow 

 limitations which sometimes strangle the right; but from a Tribunal 

 formed for the very purpose of expanding, enlarging and recognizing 

 the beauties and greatness of international law. 



The legal principles contended for by our friends on the other side 

 are stated at page 55. 



That by the universal usage of nations, the laws of any State have no extra-terri- 

 torial application to foreigners, even if they have such application to subjects. 



With that, subject to the limitation that I have tried to make clear, I 

 can find no fault. 



That Great Britain has incorporated this principle into her own law by a long- 

 established usage, and a series of decisions of her Courts; aud that the law of the 

 United States is identical. 



With that I find no fault. 



That the British Colonies have no power to legislate for foreigners beyond the 

 colonial limits. 



That international law has recognized the right to acquire certain portions of the 

 waters of the sea and the soil under the sea in bays, and in Avaters between islands 

 and the mainland. 



This, in its terms, I should not be willing to recognize, because it 

 recognizes the symptom and not the cause. International law has 

 recognized the right of Great Britain and other Nations to certain 

 Fisheries, to certain properties, not because it happens to touch the 

 soil under the sea, but because, as I endeavoured to show, the protection 

 of an industry was involved. 



That the analogy attempted to be traced by the United States between the claims 

 to protect seals in Behring Sea, and the principles applicable to coral-reefs and 

 pearl-beds, is unwarranted. 



The only difference is that the case of the seals is so much stronger, — 



stronger for the reason that I have given, that it is not necessary, in 



order to assert our jurisdiction and to handle our property, that we 



should dive down to the bottom of the sea. These animals come of 



B S, PT XII 20 



