196 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



be said of all freedom and of all liberty, it has limits. As Mr. Blaine 

 lias sai<l, freedom of the sea is not lawlessness; it is not everything 

 that can be done there: it stops somewhere, as all freedom stops. The 

 liberty that is under the law is all the liberty that has ever proved 

 beneficial to the human race, — whether all the liberty that is under the 

 law has proved a blessing or not may be another question. What then 

 is its history? Whence comes this idea of the freedom of the sea? 

 When and where did it begin, how far did it ever extend, and where 

 does it stop? Those are the questions that are involved in this discus- 

 sion, very directly and immediately. I need not remind any person 

 conversant with the history of maritime law, that the time is not very 

 distant, historically speaking, when the idea of the freedom of the sea, 

 first promulgated by Grotius, found its way into the law of the world. 

 Before that, the doctrine was that of onare clausum^ that is to say, just 

 as far as the interests of any maritime nation appeared to require 

 that it should assume dominion and sovereignty over the sea, it did 

 assume it and all the world acquiesced. 



If it were 100 years back, the claim of Eussia that was so modestly 

 suggested by M. de Poletica in 182H, that all the conditions that attend 

 a closed sea existed on the part of Behring Sea, so that Russia might, 

 as he said, have advanced that claim, although she did not intend to 

 do it — if we had been 100 years further back it would not have been too 

 late, as international law then stood, for Eussia to have asserted that 

 claim. In 1824, a distinguished author, Mr. Chitty, published a book 

 on that subject in which he maintained the doctrine of mare clausum. 



Senator Morgan. — That is the doctrine now as to the Dardanelles 

 and the Bosphorus. 



Mr. Phelps. — Yes; it may have its exceptions. 



Sir Charles Eussell. — What book of Mr. Chitty's is that? 



Mr. Phelps. — I will give yoM the reference. It is Chitty's Commer- 

 cial Law, and it was published in 1824. 



Sir Charles Eussell. It was the Quatuor Maria, I think. 



Mr. Phelps. I do not refer to it, because I do not propose to main- 

 tain that in 1824 this was the settled law of the world at all. Grotius 

 was earlier than that, and the doctrine mare Jiberum had made consid- 

 erable advances; but it was not too late in 1824 for a very respectable 

 writer to put forth his book in which he maintained the doctrine of 

 mare clausum, that wherever the interests of the nation, and, as he 

 argued, the interests of the world required, sovereignty should be 

 extended over it. I refer to that as an illustration. 



Lord Hannen. — Can you give the page of Chitty? 



Mr. Phelps. — No, I cannot here, because the whole book is devoted, 

 or at least a large share of the book, to the maintenance of that doctrine 

 in contradistinction to the views put forth by Grotius. I refer to it only 

 as an illustration, not with the view of taking up the contention of 

 Mr. Chitty one way or the other. 



Senator Morgan. — Is not that the doctrine to-day, as announced 

 here with reference to the Fjords of Norway, and the Chesapeake Bay, 

 and the mouth of the Delaware. 



Mr. Phelps. — I am coming to those illustrations when I consider 

 what are the remnants left in the world. That is one of them. I want 

 to see how far that old doctrine of mare clausum prevailed without dis- 

 pute in the world till Grotius attacked it. 



The President. — I think the word "dispute" is going rather far. 



Mr. Phelps. — Well, perhaps, the word "dispute" is a little too 

 strong. It might have been questioned, but I think till Grotius' 



