ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 138 



Every nation may appropriate thinfjs, the nse of which, if left free and common, 

 would be greatly to its prejudice. This is another reason why maritime powers 

 uiay extend their domain along the sea coast, as far as it is possible, to defend 

 their rights. . . It is essential to their security and the welfare of their dominions. 



Tlien Plocque, after discussin<>: the limits of the territorial sea, and 

 pointing out the great divergence of opinion that has existed on the 

 point, says : 



Moreover, in custom-house matters, a nation can fix at will the point where its 

 territorial sea ceases; the neighbouring nations are supposed to be acquainted with 

 these regulations, and are consequently, obliged to conform thereto. As an example, 

 we will content ourselves with quoting the law of Germinal 4th, year II, Art. 7, 

 Tit. 2 : ' Captains and officers and other functionairics directing the custom-house, or 

 the commercial or naval service, may search all vessels of less than 100 tons burden 

 when lying at anchor or tacking witliin four leagues from the coast of France, 

 cases of vis major excepted. If such vessels have on board any goods whose impor- 

 tation or exportation is prohibited in France, the vessels shall be confiscated as well 

 as their cargoes, and the captains of the vessels shall be required to pay a fine of 

 500 livres'. 



There is an example of a statute operating territorially outside the 

 ordinary three miles, about three times as far. 

 Says Pradier-Fodere (Traite de Droit international. Vol. II, sect. 633) : 



Independently of treaties, the law of each State can determine of its own accord 

 a certain distance on the sea, within which the state can claim jurisdiction, and 

 which constitutes the territorial sea, for it and for those who admit the limitation. 

 This is especially for the surveillance and control of revenues. 



And in a note to this passage he says: 



It effect, in the matter of revenue, a nation can fix its own limits, notwithstand- 

 ing the termination of the territorial sea. Neighboring nations are held to recognize 

 these rules, and in consequence are considered to conform to them. On this point 

 the French law of the 4th Germinal, year II, can be cited. 



This law fixes two myriameters, or about twelve English miles as the limit within 

 which vessels are subject to inspection to prevent fraud on the revenue. 



La Tour (De la mer territoriale, page 230), speaking of the exterritorial 

 effect of the French revenue laws at four leagues from the coast, thus 

 justifies them. 



Is not this an excessive limit to which to extend the territorial sea? No, we assert. 

 At the present day this question will hardly bear discussion, on account of the long 

 range of cannon; and though we should retui-n to the time when that range was 

 less, we should still undertake to justify this extension of the custom-house radius; 

 and for this it is sufiQcient to invoke the reasons given in matters of sanitary police. 

 It does not involve simply a recijirocal concession of states, or a tacit agreement 

 between them, but it is the exercise of their respective rights. . . 



The American and English practice allows the seizure, even outside of the ordi- 

 nary limit of the territorial waters, of vessels violating the custom laws. 



Says M. Calvo (Le droit international, sec. 244) : 



In order to decide the question in a manner at once rational and practical, it 

 should not be lost sight of at the outset that the state has not over territorial sea a 

 right of property but a right of inspection and of jurisdiction in the interest of its 

 own safety, or of the protection of its revenue interests. 



The nature of things demonstrates then that the right extends up to that point 

 where its existence justifies itself, and that it ceases when the apprehcnson of serious 

 danger, practical utility, and the possibility of effectively carrying on definite action 

 cease. 



Maritime states have an incontestable right however, for the defence of their 

 respective territories against sudden attack, and for the protection ot their interests 

 of commerce and of revenues, to establish an active ins))ection on their coast and its 

 vicinity, and to adopt all necessary measures for shutting off access to their terri- 

 tory to those whom they may refuse to receive, whei-e they do not conform to estab- 

 lished regulations. It is a natural consequence of the general principle, that what- 

 ever anyone shall have done in behalf of his self-defence he will be taken to have 

 done rightly. 



