ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 79 



Mr. Phelps. — They are succeeding sections. 



Sir Charles Russell. — He is showing how far this possession may 

 extend; and then he proceeds to discuss tlie limits referring to the old 

 ideas of extended jurisdiction. In that paragraph 289, he refers to the 

 limitation of cannon shot. 



Senator Morgan. — Sir Charles, as to the property outside the three- 

 mile limit, I understand you to insist that the author refers to the 

 doctrine of acquisition by prescription? 



Sir Charles liussELL. — Partly that, I do not say wholly that, but 

 possession. 



Mr. Phelps. — 1 am very much obliged to my learned friend for 

 reminding me of what had escaped me for the moment. There is 

 another passage from this author to be cited in another part of my 

 argument which shows that my construction of his language is right. 

 It does not depend merely on the illustration he employs, which shows 

 very plainly that he is not proceeding on the ground of a three-mile 

 limit. Within the three-mile line, anytliing that can be taken out of 

 the water belongs exclusively to the nation: nobody denies that. 



Sir Charles Russell. — Well, we do not admit that in that sense at 

 all. We say that there is the exclusive right to take it, not that the 

 property belongs to the nation. 



Mr. Phelps. — The exclusive right, if my learned friend likes that 

 expression better, and it is, perhaps, the more correct expression, within 

 the three mile limit of a nation to take out of the sea anytliing that is 

 worth taking, no matter what it is, is just as complete as its exclusive 

 right to take similar property on its soil. I take it there is no question 

 about that. What, then, is the necessity for this eminent author going 

 further than that in the assertion he makes about these rights? When 

 he has said that within the territorial limit the right is exclusive, he 

 has said everything. He does not say that at all. He says that nations 

 may challenge to themselves the right to appropriate property of this 

 kind which, as he says, appertains (if I give his words correctly), and 

 that their right becomes as extensive as the necessities of the husbandry 

 of this marine or semi-marine product; and, as I shall show, that is the 

 usage that has obtained everywhere, without it, this would be nonsense. 



If you write in to what Vattel has said there, the limitation "provided 

 always that this product or fishery, or whatever it may be, can be 

 availed of within three miles of the coast," he has only aitirmed in all 

 this language what nobody at all denies, and what might be stated, if 

 he had occasion to state it, in a single line. 



Sir Charles Russell. — He is writing at the end of the last century, 

 in 1797. 



Mr. Phelps. — We were aware of the date of Vattel's writing, and I 

 presume the Tribunal were. If my learned frjend means to assert that 

 Vattel does not support my view, that is one thing. If he asserts that 

 Vattel is not authority, that is another thing. 



Sir Charles Russell. — ISTo, I referred to the date, because the limi- 

 tation of the territorial jurisdiction was not then fixed as it is now. 



Mr. Phelps. — It was fixed and there was the same limitation that 

 now prevails. 



Senator Morgan. — And it is not fixed now. 



Mr. Phelps. — No as I shall showin-osently by the English decisions, 

 but we must take one thing at a time. 



If it be said that Vattel wrote too early to be authority, that will dis- 

 pose of this citation; that is a point on which I have nothing to say. 



