306 ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 



tlioir own volition, guided by their own instincts and preserved by that 

 in.stinct from destruction. Tliey come nj^on our soil; they seek it; 

 they choose it. They live there, and breed there; and certainly, dur- 

 ing- the time that they are there, they are under our protection and in 

 our possession. 



And, liiially, that there is no coniplote or even partial consent of nations to any 

 snch pretension as to property in, and protection of seals as set up by the tluited 

 States. 



Undimbtedly that is true. There is no such complete admission of 

 our rights so long- as a powerful nation like Great Britain denies them. 

 Certainly this is true, for if Great Britain accepted our views of the 

 situation we would not have the honor to be here before this Tribunal 

 to day. If the United States has ariglit of ])roperty either in the seals 

 outside the territorial liiieorof self defence in respect of their interest 

 in the herd, no question is submitted by the Treaty as to how that 

 right is to be exercised and enforced. It is to be presumed the United 

 States is able to enforce that right. It is to be presumed that no 

 nation would be willing to dissent from the conclusion reached by this 

 Tribunal should it recognize that right. All the desirable results 

 should follow from that decision, namely, that other nations should 

 abstain from disputing that which is assigned to us. It might happen, 

 perhaps that the United States would undertake, in an excessive or in 

 an impro])er way, to assert and exei'cise and enlorce its rights but that 

 would api)ly to any other right. There is no right whicli may not be 

 asserted in an olfensive way. There is no claim, however just which 

 may not be enforced in such a nmnner as to justify the resistance and 

 resentment of other nations. As to that, the United States must take 

 the risk. It may be trusted, I think, to enforce those rights in a just 

 and reasonable manner. 



I have now, if the Court pleases, said all that I deem it necessary to 

 say ui)on this branch of the subject, and I will proceed to a matter 

 more directly connected with the facts in the case. I am quite con- 

 fident that every Judge on the Bench and perha])S every Jurist on this 

 Bench has recognized that one of the great dithculties in this case is 

 due to the absence of what we call pleadings — the absence of issues. I 

 cannot but believe that if this case had been brought into Court in a 

 manner common to both nations in such a way that issues would have 

 been framed, ver^^ little dispute of fact would have arisen between our 

 distinguished I'riends and ourselves. This absence of pleadings and 

 therefore of issues, has injected an element of confusion into the case 

 which it is very difficult to get ri<l of. To decide what is the question 

 in a controversy has been a dii'liculty from the time of Bacon and a 

 good deal before him; as he said, to ascertain the true question was 

 one half of the battle. 



The idea of pleadings, whether in Great Britain, the United States, 

 or France, or any other country, is to have an assertion of right made 

 on the one side with a denial on the other side — in other words, to pre- 

 sent to the Court in the clearest manner i)ossible the various contentions 

 of the different parties. Every lawyer has experienced the advantages 

 which resulted from the adeipiate ])resentation of the issues, although 

 he may occasionally have been conlincd witiiin narrow limits by their 

 operation. There is no such difficulty here; we may discuss every- 

 thing; we may discuss the nature of the seal, the habits of the seal, 

 the life of the seal, the death of the seal, and we are bound to deal 

 with matters possibly irrelevant, for we do not know what is conceded 

 nor are we clearly tohl what is denied by the other side. 



