80 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



If it be that he, in using this language, meant only to assert that the 

 exclusive right to take ])roperty out of the sea, within the limit assigned 

 to the territorial jurisdiction, was enjoyed, then I say, with very great 

 respect, his language is completely misnnderstood. Another section, 

 which Avill be found on page 148 of the United States Argument, shows 

 that plainly enough. That is section 289 which is the section immedi- 

 ately following the two from which I have read. Those I have read 

 are sections 287, a part of 288, and this is 289, or an extract from it. 



It is not easy to determine to what distance the nation may extend its rights over 

 the sea by which it is surrounded. . . Each state may on this head make what 

 regulation it pleases so far as respects the transactions of the citizens with each 

 other, or their concerns with the sovereign; hut, hetween nation and nation, all that 

 can reasonably be said is that in general the dominion of the state over the ueigh- 

 houring seas extends as far as her safety renders it necessary, and her power is able 

 to assert it. 



And in that connection I should like to read what Chancellor Kent 

 says. 



Sir Charles Russell. — Bat then Vattel goes on to say in the same 

 passage that he refers to the cannon-shot. 



Mr. Phelps. — If you will give me the book I will read it. 



Sir Charles Russell. — No, I beg your pardon for interrupting you. 



Mr. Phelps. — It is no embarrassment, and I will read anything that 

 is desired. 



Sir Charles Russell. — No, I do not wish that. 



Mr. Phelps. — I regret that I read these citations from copies, with- 

 out bringing in the volume, as I might have done, but if there is any- 

 thing further I will recur to this subject again. 



Chancellor Kent says in his First Commentaries, at page 29, 



It is difficult to draw any precise or determinate conclusion amidst the variety of 

 opinions as to the distance to which a state may lawfully extend its exclusive 

 dominion over the sea adjoining its territories and beyond those portions of the sea 

 which are embraced by harbours, gulfs, bays, and estuaries, and over which its juris- 

 diction uoquestionably extends. All that can reasonably be asserted is, that the 

 dominion of the sovereign of the shore over the contiguous sea extends as far as is 

 requisite for its safety and for some lawful end. 



It is pretty clear that Chancellor Kent is not talking about the three- 

 mile limit there, because the very question he is discussing is, how far 

 beyond the territorial dominion may a nation extend its powers; and 

 he answers that question by saying, ove rthe contiguous sea, the sea 

 that washes its coast, as far as is requisite for its safety and for some 

 lawful end. 



And he says in another connexion on page 31 : 



And states may exercise a more qualified jurisdiction over the seas near their coast 

 for more than the three (or five) mile limit for fiscal and defensive purposes. _ Both 

 Great Britain and the United States have prohibited the transhipment within four 

 leagues of their coast of foreign goods without payment of duties. 



I shall come to that subject later on. I only refer to it here in con- 

 nexion with what Vattel has said; and I resijectfully insist tljat both 

 these authors, Puffendorf and Vattel intend to assert and do assert the 

 right of the nation to extend its dominion over property of that sort 

 attaclied to its territcjry, which is made the basis of an imi)ortant indus- 

 try, just as far into the contiguous sea as is necessary to protect it; 

 and whether that falls outside of the three-mile line, whether indeed, as 

 in the case of the pearl fishery, it all falls outside of the three-mile line 

 or whether it is property that is part of the time within the three-mile 



