ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 137 



And Sir Robert Pliilliinore, in his opinion in that case (which is 

 quoted in the note to page 14G of our Argument), uses this language: 



The sound conclnsions wliicL result from the iuvestioation of the autlioritios which 

 have been referred to appear to me to be these: The consensus of civilized inde- 

 pendent states has reco<;uized a maritime extension of frontier to the distance of 

 three miles from low water nnirk, because such a frontier or belt of water is neces- 

 sary for the defence and security of the adjacent state. 



It is for the attainment of these particular objects that a dominion has been 

 granted over these portions of the high ^eas. 



This proposition is materially diti'erent I'rom the proposition contended for, viz: 

 that it is competent to a state to exercise within these waters the same rights of 

 jurisdiction and property which appertain to it ia respect to its lands and its ports. 

 There is one obvious test by which the two sovereignties may be distinguished. 



According to modern international law it is certainly a right incident to each state 

 to refuse a passage to foreigners over its territory by land, whether in time of peace 

 or war. But it does not appear to have the same right Mith respect to preventing 

 the passage of foreign slups over this portion of the high seas. 



In the ibrnier case there is no jus Iransitus ; in the latter case there is. 



The reason of the thing is that the defence and security of the state does not 

 require or warrant the exclusion of peaceable foreign vessels from passing over these 

 waters, and the custom and usage of nations has not sanctioned it. 



Nor is there any author that I know of, that has ever chiimed any 

 such riglit of a nation of jurisdictiou over the three mile limit itself. 



The President. — Would not it be perhaps that it would be more 

 against the right of the comity of nations than against the right of the 

 sovereign nation, as a matter of theory? 



Mr. Phelps. — With much deference you will find it to be put in all 

 these cases by the English, American and Continental publicists, upon 

 the ground of right. That word is used over and over again — it is a part 

 of the right of the nation. The three mile line is a measure of defence. 

 So long as defence can be adequately and sufficiently couducted within 

 it, there is no apology for a nation going outside it. The necessity 

 fails. When necessity passes the limit, the right of defence is co-exten- 

 sive with it, and goes as far as that goes. 



I propose, on the next occasion — I should not have time to enter 

 upon it to-day intelligently — to show the extent to which this right of 

 defence may be exercised upon the sea — all the authorities that I have 

 cited thus far refer to the sea — what may be done outside of the three 

 mile, or "cannon-shot" line. I shall purpose to show that the same 

 right extends and is exercised and is justified and sustained by 

 eminent statesmen and diplomatists — not only asserted on the one 

 side but conceded on the other, even to go into foreign territory if it is 

 necessary. It must bean extreme case,Iam sure, that justifies a nation — 

 that is to say, that makes it necessary for a nation, in time of peace, 

 to trespass on the territory of another nation in order to exert its right 

 of self defence — a case of rare occurrence — and yet a case that does 

 occur, and when it occurs I do not think anybody has ever questioned 

 that the right to go on to such territory exists. It has been exerted by 

 various nations, by Great Britain, by the United States, in various 

 instances, it has been exerted by the one against the other, and by 

 both against other nations; and the only question that could be raised 

 in any of these cases would be upon the facts of the particular case. 



The right is always conceded. The dispute arises in respect of the 

 particular necessity, and that, of course, is always a grave question. 

 But when you have established the necessity — when it is necessary for 

 Great Britain to enter the territory of the tlnited States to exert its 

 just and pro])er right of self defence in time of peace, then it has not 

 been denied by either nation, and it cannot be denied, that the right 

 exists; and I shall propose when I have the honour to address you fur- 

 ther, to point out instances of a larger and wider nature, so as to show 



