ORAL ARGUMENT OF FREDERICK R. COUDERT, ESQ. 425 



friendly nation, tbe United States Government Lad said: "We will 

 go on". 



The United States can aftord rather to lose this valuable industry' 

 than to come into collision with a friendly power; the cause of civili- 

 zatiou would sufl'er iess than if these two great nations, among' those 

 that lead the world, those that are giving the example of this practice 

 that was began at Geneva and is going on now at Paris, had come into 

 collision. If she had said, "We will let it go on" how long would the 

 seals have lasted. There was a temporary interregnum on the islands 

 one year, and 250,000 of these animals were swept out; and yet these 

 pelagic sealers had scarcely tasted blood, and hardly knew what the 

 conditions were. Their knowledge is growing every day. The small 

 fleet of three ships has grown to 122. Even now when I am talking to 

 you, do you not suppose that gravid females are being slaughtered on 

 the way to their homes on the Pribilof Islands? Do you not under- 

 stand that this Modus Vivendi was simply accepted for a while for the 

 sake of peace, and because we could do no better? The matter is now 

 in the hands of this Tribunal, and to its hands I commit it, hopeful, and 

 I will say confident, that the result will be a step in advance in the 

 cause of humanitj^ and fair dealing among nations. 



One single word now as to the question of damages. I do not i)ro- 

 pose to discuss that. My learned friend. Judge Blodgett, had prepared 

 a careful brief. As I understand the Treaty, this Tribunal has no power 

 to pass upon the liability of either nation as against the other. There 

 was some discussion as to that, and Great Britain was unwilling that 

 question should be submitted to this high Court of Arbitration. We 

 had our claims, you had your claims, and we were willing both should 

 be submitted. 



Sir Charles Russell. — It was the otlier way, I think. 



Mr. CouDERT. — The other way, if you please. I think not. But the 

 nations were not willing, and they did not submit this question of 

 liability, simi)ly leaving this Court to find upon the questions of fact. 

 Now, we are divided upon a question of law, and yet to some extent it 

 may control the Court in finding upon the facts. That is, as to intricate 

 and remote damages. We submit to the Court as well settled by the 

 law of Great Britain as by the law of the United States, that the pro- 

 spective catch of a ship is too remote; that you cannot count upon such 

 a catch as a sure result, nor allow for it especially where there has been 

 no malice. If it were the case of a malicious taking, where individuals 

 were concerned, then you might say the law will be effectual, and the 

 judgment will not only give damages, but inflict chasysement upon the 

 wrong-doer; but I take it to be well settled law, law settled not only in 

 the national municipal tribunals of these two countries, but settled on 

 a precisely similar principle in the great arbitration at Geneva; where 

 it was so held by the judges, all concurring in that result, and all estab- 

 lishing that precedent. 



There is also a new element of damages asserted here, that of the 

 Sayward Case. That we object to in toto, because it is not in the bill 

 of particulars, and this Court has no power now to examine new mat- 

 ters now brought up, and of which we were not notified in season. This 

 claim first appears in the Counter Case, But even if it were otherwise 

 I should say upon its face that claim cannot be sustained. The learned 

 counsel for Great Britain selected its own Tribunal. It went before 

 the Supreme Court of the United States to ask for relief, and it failed 

 to get it. It is estopped, therefore, from denying that the decision was 

 a just decision. Is there any precedent for holding that a defeated 



