132 ORRL ARGUMENT OF HON. EDWARD J. PHELPS. 



the vessel could not be condemned and the vessel was discharged. It 

 is a most instructive case, because the opinion (jf Mr. -lustice IStory, 

 like all his opinions, was very able, and had the concurrence of the 

 whole Court. 



The case of the schooner Betsey in Mason's Eeports, page 354 is a 

 decision to the same eifect by Mr. Justice Story sitting by himself in 

 the Circuit Court over which he presided. 



On page 148 of the American Argument is a citation from the first 

 of Kent's Commentaries; page 31: 



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

 coast for more tlian the three (or five) mile limit for fiscal and defensive purposes. 

 Both Great Britain and the United States have prohibited the trans-sliipment within 

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



That illustrates what I was saying this morning as to the right of a 

 state to extend its jurisdiction beyond the three mile limit. And in 

 the notes you will find several citations on that point. Mr. Twiss says 

 in his volume of International Laws : 



Further, if the free and common use of a thing which is incapable of being appro- 

 priated were likely to be prejudicial or dangerous to a nation, the care of its own 

 safety would authorize it to reduce that thing under its exclusive empire If possible, 

 in order to restrict tKe use of it on the part of others by snch precautions as pru- 

 dence might dictate. 



That English author has applied this rule to the very case that we 

 have in hand, where the free and common use of a thing which is 

 incapable of being appropriated was likely to be prejudicial or disas- 

 trous to a nation. 



Wildmau, on the same point says: 



The sea within gunshot of the shore is occupied by the occupation of the coast. 

 Beyond this limit maritime states have claimed a right of visitation and inquiry 

 within those parts of the ocean adjoining to their shores, which the common cour- 

 tesy of nations had for their common convenience allowed to be considered as parts 

 of their dominions for various domestic purposes, and particularly for fiscal and 

 defensive regulations more immediately aliecting their safety and welfare. 



Creasy, on International Law, remarks 



States may exercise a qualified jurisdiction over the seas near their coasts for 

 more than the three (or five) miles limit, for fiscal and defensive purposes, that is, 

 for the purpose of enforcement of their revenue laws, and in order to prevent for- 

 eign armed vessels from hovering on their coasts in a menacing and annoying 

 manner. 



Halleck says, in his book on International Law, 



The three-mile belt is the subject of territorial jurisdiction. Even heyond this 

 limit states may exercise a qualified jurisdiction for fiscal and defensive purposes. 



Then referring again to the language of Lord Chief Justice Cock- 

 burn, who quotes from Chief Justice Marshall's opinion in Church v. 

 JIubhard. 



To this class of enactments belong the acts imposing the penalties for the viola- 

 tion of neutrality and the so-called "hovering acts" and acts relating to the customs. 

 Thus, the foreign enlistment act (33 and 54 Vic. C. 90) which imposes penalties for 

 various acts done in violation of neutral obligations, some of which are applicable 

 to foreigners as well as to British subjects, is extended in S. 2 to all the dominions 

 of Her Majesty, "including the adjacent territorial waters". 



In the Appendix to this argument, on ])age 183, we have taken the 

 pains to bring together a number of citations from Continental Courts. 

 What we have cited before has been from English or American authori- 

 ties, either judicial or writers of distinction. Says Azuni : 



