124 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



On the otlier liaiul, wlien it is seen by tlie civili/cd world that this 

 exteii.sion in a particuhir case is proper, is right, is necessary, works 

 no harm or injustice to anybody, does give tlie nation its just and 

 necessary protection — tlien it is afifirmed, and, by tlie acquiescence of 

 mankind it comes to be established as law — it comes to be established 

 piecisely as what is called the "three mile limit" has come to be estab- 

 lished, and it derives, undoubtedly, additional force from the number of 

 cases in which it is embodied in treaties, wliicli, while they do not 

 make law for any but tbe parties to the treaties, nevertheless shew the 

 recognition of the proprieties, the justice, of certain propositions by the 

 imtions of the world. 



If it is convenient to you. Sir, to adjourn now, it would be agreeable 

 to me. 



The President. — Certainly. 



[The Tribunal then adjourned for a short time.] 



Mr. Phelps. — I had stated, Sir, before the adjournment this morn- 

 ing, one of the theories upon which, as it appears to me, both upon 

 principle and authority, the efficacy of muni('i]ial statutes or regula- 

 tions adopted for the preservation and protection of marine or semi- 

 marine products appurtenant to the shore beyond the ordinary territorial 

 line may depend. That is to say, that the question involves the enquiry, 

 what is the necessary line for such purpose. I postpone referring to 

 various authorities in support of that view until I have stated another 

 theory, equally applicable and equally supported by authority, because 

 the authorities I propose to refer to belong so generally to both tliose 

 propositions, that they can be more advantageously taken up after 

 both have been stated. 



Now a statute, as it appears to iis — a municipal statute, which takes 

 effect within any line of territorial jurisdiction, say for instance, a three- 

 mile line or a cannon-shot line, or whatever line may be prescribed — is 

 enforced by judicial process, is law whether it is necessary and proper 

 and just or not, and does not depend upon the executive authority of 

 the country at all. That is to say, in a representative Government, 

 where there is a legislative power within the territory, it is the abs(»lute 

 and positive law. It is the business of the executive to enforce it, if 

 his interposition is necessary. It is the duty of the Courts of Justice 

 to give effect to it, whenever the case arises. Outside of the jurisdic- 

 tion it has the same effect as far as those subject to the national juris- 

 diction are concerned. The ships of that power on the high sea are 

 still subject to that municipal law. Then when it takes effect, as we 

 have seen these always do take effect somehow by the consent of the 

 world outside of the ordinary territorial line, and upon those who are 

 not nationals, or under that jurisdiction, they may be said not to take 

 effect as statutes, but as wliat may be called "defensive regulations". 

 The term is not material. It expresses the idea 1 am trying to con- 

 vey. There is no magic in the term; there is no authority in the term. 

 It becomes a regulation which the executive of the country may or 

 may not enforce in its discretion. It is no longer a statute which must 

 be enforced. It is a provision which may be enforced or may not be 

 enforced. In order to justify to other nations its enforcement, the con- 

 ditions unnecessary to its efficacy within the jurisdiction must occur — 

 first, that it is necessary, then that it is reasonable. So that this pro- 

 vision, or regulation, wliicli takes effect as a statute and by judicial 

 enforcement within the jurisdiction, becomes without, only the guide, 

 the measure of the executive authority which the executive might 

 adopt if there were no statute at all, subject to a qualification which I 



