ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 199 



their municipal jurisductioii extends, have adopted, it may be protested 

 against and be defended. 



JSTow, having given some reflection to this subject, and having tried 

 to instruct myself by a reference to everything I could And of au author- 

 itative character ou the subject of international law, I venture to say 

 that there is not a maritime right, there is not a single feature in what 

 we may call the law of the sea, that does not come back and refer itself, 

 and be seen to be fouiuled upon this proposition. And that this loose 

 talk that has prevailed — and, of course, 1 am not alluding to my learned 

 friends in this observation — the loose talk that you find pervading the 

 deliverances of a very different and much less instructed class of men, 

 "who begin to enlighten the world before they have found out the 

 necessity of enliglitening themselves, — this loose talk about the freedom 

 of the sea that has been generated in newspapers, and in such sources of 

 knowledge, the idea that the moment you get upon the sea you are 

 exem})t from all human law, except in some few special particulars that 

 have become the subjects of special adjustment, and that unless you 

 run against some such arbitrary rule which may have good grounds to 

 stand on, or may not, but has become established, the freedom of the 

 sea is a universal and unlimited thing, is utterly mistaken and destitute 

 of foundation. 



I say, on the other hand, the freedom of the sea — to state the con- 

 verse of my proposition is to say the same thing over again in different 

 words — is the right to do upon it every thing that is inoffensive and 

 right in itself, and which works no injury to any maritime nation; no 

 injury to anybody else; that it stops there, and that all these cases 

 which my learned friends were struggling with, all the supposed cases 

 to which we invited their consideration, of whether this may be done, 

 or whether that may be done, or whether the other may be done, and 

 in which they were struggling to find some particular answer to each 

 case, or to find some escape from the necessity of answering the ques- 

 tion by saying, "that question is not likely to arise", or "that might be 

 settled by agreement ", all of them are immediately answered when you 

 bring them to that plain test: Is the conduct inoffensive, or is it injuri- 

 ous? May I be pardoned for alluding quite briefly, I hope, because I 

 shall only read enough to state the point, to the judgment of judges, and 

 writings of men whose authority is not questioned. Mr. Justice Story 

 says in the case of the Marianna Flora, in the 11th Wheatou, Supreme 

 Court Eeports : 



Every ship sails there 



that is, in the open sea: the context shows what he meant 



with the uiiquestiouable right of i^ursuing her own lawful business without inter- 

 ruptiou, but whatever may be that business, she is bound to pursue it in such a 

 manner as not to violate the rights of others. The general maxim in such cases is 

 sic utere tuo ut alienum non Icedas. 



Then Chancellor Kent says on page 27 of the Ist. Volume of his 

 Commentaries. 



Every vessel in time of peace has a right to consult its own safety and conven- 

 ience, and to pursue its own course and business without being disturbed, when it 

 does not violate the rights of others. 



Mr. Justice Amphlett says in the case of the Queen v. Keyn in the 

 2nd Exchequer which has been so often referred to in the course of this 

 discussion : 



The freedom of the high seas for the inoffensive navigation of all nations is firmly 

 KslablibheJ, 



