200 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Kendiiij; from the note on paj?e 142 there is a passage cited from 

 Grotius, the great authoiity ou the freedom of the sea. 



It is certain that lie who would take possession of the sea by occupation cotiUI not 

 preveut a peaceful and innocent navigation, since sucli a transit cannot be iutei'dicted 

 even ou land, though ordinarily it would be less necessary and more dangerous. 



Then the note at the bottom of page 142; Mr. Twiss iu section 172 

 and 185 of his International Law says: 



But this is not the case with the open aea upon which all persons may navigate 

 without the least prejudice to any nation whatever, and without exposing any nation 

 thereby to danger. It would thus seem that there is no natural warrant for any 

 nation to seek to take possession of the open sea, or even to restrict the innocent 

 use of it by other nations. * * * The right of lishing in the open sea or main 

 ocean is common to all nations on the same principle which sanctions a common 

 right of navigation, viz, that he who fishes in the open sea does no injury to any one, and 

 the products of the sea are, in this respect, inexhauslible and sufficient for all. 



The right of self defence and the right of jurisdiction have been 

 referred to — they have no connection with each other — almost no rela- 

 tion with each other. Jurisdiction is sovereignty and is confined to 

 territory — Self defence is not confined except by the necessity and 

 propriety of the case, and has nothing at all to do with jurisdiction. 



Then to meet the exact point that Senator Morgan has just suggested. 

 Besides the three-mile limit there is another extent of jurisdiction such 

 as he referred to in the Fjords of Norway, the large bays where the 

 headlands were more than 10 miles apart and embrace more water than 

 the three mile limit or cannon-shot limit from the shore would cover, 

 there tlie same principle has extended further and Chancellor Kent 

 expresses it so well that I will read a few words from page 147 of the 

 Argument which are quoted from pages 30 and 31 of his first Commen- 

 taries. 



Considering, he says, the great extent of the line of the American Coasts we 

 have a right to claim for fiscal and defensive regulations a liberal extension of 

 maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume, 

 for domestic purposes connected with our safety and welfare, the control of the 

 waters on our coasts though included within lines stretching from quite distant 

 headlands as for instance from Cape Ann to Cape Cod, and from Nantucket to Mon- 

 tauk Point and from that point to the capes of the Delaware and from the south 

 cape of Florida to the Mississippi. 



That is the poiut. That is an extent of jurisdiction beyond the can- 

 non-shot line, beyond the three-mile line, and it results from exactly 

 the same necessity. Chancellor Kent says that the necessity of exer- 

 cising a control over waters to that extent is a general necessity; so 

 that, instead of going out when the occasion requires to do the thing 

 that the occasion requires, you extend the general jurisdiction. 



The President. — Does the Government of the United States claim 

 to extend the jurisdiction as propounded by Chancellor Kent? 



Mr. Phelps.— Yes. 



Lord Hannen. — In what way has it been claimed excejit otherwise 

 than on the very high authority of Chancellor Kent? 



Mr. Phelps. — Practically. 



Senator Morgan. — It has never been disputed by any nation that 

 I know of. 



Mr. Phelps. — I do not know of any question having arisen. The 

 Bay of Fundy, I think, stands on the same ground. 



Lord Hannen. — But there it was not allowed. That question came 

 before a tribunal before which I acted as advocate as you are doing 

 now, and there it was decided against us by the umpire. 



Mr. Phelps. — I quite defer to your Lordship's better information, 

 but I had the impression arising out of what had transpired in these 



