78 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Lord Hannen. — I must beg your pardon, Mr. Phelps, but I confess 

 I have read and understood that passage to refer only to the three-mile 

 limit, because he says: 



A nation may appropriate to herself these thinjics of which the free and common 

 Tise would be prejudicial or dangerous to her. This is a second reason for which 

 Governments extend their dominion over the sea alongtheir coasts as far as they are 

 able to protect their right. 



I understand that to be a reference to the theory that it is as far as 

 a cannon shot would go. 



Mr. Phelps. — I do not so understand it. 



Marquis Venosta. — I remember that Vattel, after expressing the 

 consideration you have cited, concludes by adopting the well-known 

 maxim of Bynkershock — terrw dominium finitur ubi finitur armorum 

 vis, or, in- other words, the rule of the cannon shot. Do you not think 

 that the citation you have read is in connection with that conclusion? 

 It is an elucidation I ask you for. You do not tliink that these consid- 

 erations have a direct reference to that conclusion. It is the same as 

 the sentiment that Lord Hannen has expressed. 



Mr. Phelps. — I do not. Sir, with great submission, and I think I can 

 show immediately that it is not so. The very illustration Vattel employs 

 in this passage in respect of the pearl fisheries which extend twenty 

 miles into the sea, shows what he is thinking of, and the context of the 

 book shows that he is not merely affirming there the truism of the line 

 of sea over which a nation is authorized for many i^urposes to extend 

 its territorial dominion: it requires very few words to aftirm that and 

 no reasoning to support it. He is refei^ring to the product, to the article 

 of the industry, not to the precise limit of the sea in wliich it is con- 

 tained, and I understand his proposition to be that where such a marine 

 product as he refers to, not only the pearl fishery, but fisheries in gen- 

 eral, where it is in the adjacent waters, where it appertains to the terri- 

 tory, where it is not inexhaustible and would perish if it were not pro- 

 tected, the property is in the industry, in the fishery, not in tlie specific 

 animal. By which he does not mean that he could follow that animal off 

 into a distant sea and assert the property over him that he would over a 

 domestic animal — over his horse or his ox, but the property in the 

 industry. 



Sir Charles Russell. — May I interpose, if it is not inconvenient 

 to my learned friend? 



Mr. Phelps. — Certainly. 



Sir Charles Russell. — I have the book here, and it will be found, 

 with reference to the book, he is dealing with the question of the cir- 

 cumstances under which dominion may be extended. 



There is no question of property; but dominion maybe extended, 

 and he justifies that with relation to the line of defence. He goes on 

 in the very next passage following to show how far this possession may 

 extend; and then he proceeds to justify the extra territorial limit of a 

 certain margin of the sea. 



Mr. Justice Harlan. — But when he refers to the Fisheries of Ceylon, 

 do you think he means to say that property only within the territorial 

 water, but no property in the fishery outside? 



Sir Charles Russell.— No; he is then dealing with a difterent 

 matter altogether, that you may acquire by possession ; and the case 

 he puts is dominion in that spot, in that place, — it is clear from the 

 context. The passages are not together, and they are not in the same 

 connection. 



