136 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



this morning it is bnt a qualified jiirisfliction within the three miles, 

 because as the judges in that case i)oint out, innocent navigation of 

 vessels within three miles can not be excluded. It is only for the puri)ose 

 of self defence; and the whole theory of the three mile line is but an 

 incident of the right of self defence for which it is given, so far as it 

 goes, but which does not limit the right itself. It is the off-spring of 

 the necessity and does not limit the principle from which it springs. 



Senator Morgan. — In this Treaty, Mr. Phelps, in the only instance 

 in whi(;h it is mentioned, it is called the "oi'dinary" three mile limit. 



Mr. Phelps. — Yes. That language is often used and it is correct, 

 because it is ordinary; but the word "ordinary" is a very different 

 word from "exclusive". 



Now, Sir, you will perhaps pardon me — (because I can really make 

 this clearer by using the language of great judges than in any words of 

 my own) for reading a little from Lord Chief Justice Cockburn's opinion 

 in the case of the Queen v. Keyn. The Lord Chief Justice, after review- 

 ing with great fulness and learning the whole subject of the three mile 

 limit, from end to end, and referring probably to every respectable 

 authority which at that time existed on the subject, in a long opinion 

 and a very voluminous one, sums it up in this way. 



From the review of these authorities we arrive at the following results: There 

 can be no donbt that the suggestion of Bynkershoek that the sen surrounding the 

 coast to the extent of cannon range should be treated as belonging to the state owning 

 the coast, has, with bnt very few exceptions, been accepted and adopted by the 

 puldicists who have followed him during the last two centuries. But it is equally 

 clear in the practical application of the rule in the respect of the particular of dis- 

 tance, as also in the still more essential particular of the character of sovereignty 

 and dominion to be exercised, great differences of opinion have prevailed and still 

 continue to exist. As regards distance, while the majority of autiiors have adiiered 

 to the three-mile zone, others, like Mr. Ortolan and M. Halleck, applying with greater 

 consistency the principle on which the whole doctrine rests, insist on extending the 

 distance to the modern range of cannon — in other words, doubling it. This differ- 

 ence of opinion may be of little practical importance in the present circumstances, 

 inasmuch as the place at which the offence occurred was within the lesser distance: 

 but it is nevertheless not immaterial as showing how unsettled this doctrine still is. 

 The question of sovereignty, on the other hand, is all important and here we have 

 every shade of opinion. . . 



Then omitting a passage and reading lower down, he says : 



Looking at this we may properly ask those who contend for the application of the 

 existing law to the littoral sea, independently of legislation, to tell us the extent to 

 which we are to go in applying it. Are we to limit it to three miles, or to extend it 

 to six? Are we to treat the whole body of the criminal law as applicable to it, or 

 only so much as relates to police and safety? Or are we to limit it, as one of tliese 

 authors proposes, to the protection of tisheries and customs, the exacting of harbour 

 aii'l like dues, and the protection of our coasts in time of war? Which of these 

 writers are we to follow ? 



The Lord Chief Justice, in that opinion, points out the great differ- 

 ence between the authors, some of whom have assumed this distance to 

 be to the horizon line — some as far as one can see — some 200 miles — 

 one 100 miles — another 60 miles and so on; but he says that the major- 

 ity of publicists have rather settled down on the ordinary line of three 

 miles; but later in the opinion, on the question of what a nation may do 

 within the three mile limit, on the i)oint whether they can exclude 

 foreign ships from innocent passage, he says it is a "doctrine too 

 monstrous to be admited". And again he says: 



No nation has arrogated to itself the right of excluding foreign vessels from tho 

 use of the external littoral waters for the purpose of navigation. 



