ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 135 



as a bonudary in certain agreements and treaties, and from its freqnent mention in 

 textbooks, but has never been established in law as a fixed bonudary. 



These rights belonged to England as a member of the family of nations, and did 

 not constitute her the possessor of a proprietary title in any part of the high seas 

 nor add any portion of these waters to her realm. In their nature they were rights 

 of dominion and sovereignty rather than of property. 



Mr. Justice Blatchford, in delivering the opinion of the court, says: "We think 

 it must be regarded as established that, as between nations, the minimum limit of 

 the territorial jurisdiction of a nation over tide-waters is a marine league from its 

 coast; that bays wholly within its territory, not exceeding two marine leagues in 

 width at the mouth, are within this limit ; and that included in this territorial juris- 

 diction is the right of control over fisheries, whether the lisli be migratory, free- 

 swimming fish, or free-moving fish, or fish attached to or embedded in the soil. The 

 open sea within this limit is, of course, subject to the common right of navigation, 

 and all governments, for the purpose of self protection in time of war or for the 

 prevention of frauds on its revenue, exercise an authority beyond these limits. 



i^ow, Sir, by these various authorities, at the risk of being tedious 

 upon a point that, if it had uot beeu coiitroverted on the other side, I 

 should have thought was elementary, I have endeavored to sustain the 

 proposition I advanced in respect to the two different theories, applica- 

 ble to dill'erent cases, arisinj]^ under the same rule, in which the statutes 

 or regulations, or action without statutes or regulations, of a nation in 

 its own defence do take effect, and are recognized by the established 

 principles of international law as effectual, outside of any arbitrary 

 line of three mile distance or cannon shot. 



They show that, in the first place, for all purposes of self-defence — 

 defence of revenue, of fishery, of industries and of everything that is 

 worth defence, the effect of these statutes goes out beyond any arbitrary 

 line, goes out as far as is necessary in the case where it is necessary. 

 We have shown likewise — and I have not attempted to separate them 

 because they are not easily separable — that without any special statute, 

 wherever the protection of an interest, if it is only an interest of com- 

 merce or industry, requires it, the strong arm of the nation may be 

 extended, as in the cases in question in these decisions in the Supreme 

 Court, upon the high seas; that a vessel may be pursued and arrested, 

 or may be arrpsfpd when caught in the actual occupation of infringing 

 one of these regulations. 



Now a word or two about the three mile line so often spoken of. It 

 is often recognized in treaties; it is sometimes referred to in statutes; 

 it has come to pass that it is quite generally recognized, and therefore 

 with that class of superficial minds that have occasion, (or think they 

 have), to talk about this subject, it is regarded as an arbitrary and fixed 

 distance which limits the authority of a Government; that it is an 

 annexation of three miles to the territory within which a nation can do 

 anything, without which it can do nothing. The moment that point is 

 examined, and it is examined with the very highest ability and fairness 

 in the case of The Queen v. Keyii^ 2 Exchequer, not only by the Lord Chief 

 Justice Cockburn but by all the judges of England — I think everyone 

 of them delivered an opinion in that case and there is no one of these 

 opinions that may not be usefully perused — it is shown that the whole 

 idea of the three mile jurisdiction, instead of being the limit of a nation's 

 power of self defence is, itself, only an incident of the general power of 

 self defence. 



Mr. Justice Harlan. — Justice Blatchford used the word " minimum". 



Mr. Phelps. — Yes. The suggestion is as pertinent as the language — 

 which is very pertinent. That is given as the distance which is ordi- 

 narily necessary. Up to that point, no question will be made but that 

 the necessity of self defence will extend to it, and yet as I remarked 



