ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 201 



Fishery disputes tliat the right of Great Britain to exteiul jurisdiction 

 over the Bay of Fundy as coming within its headhmds had been 

 asserted. 1 uuiy be wrong. 



Lord Hannen. — It was asserted by Great Britain but overruled. 



Senator Morgan. — I understood it was overruled upon the ground 

 that there was au American island in that Bay. 



Mr. Phelps. — I presume, if your Lordship had been umpire instead 

 of Counsel, it would not have been overruled. 



Lord Hansen. — That is a left handed compliment. 



Mr. Phelps. — It is by no means so intended, my Lord. I mean only 

 to say, if the Tribunal had had the advantage of your Lordship's judg 

 ment on that point they would have come to a different conclusion. 

 This is aside: it is a mere illustration of what I was saying. 



Sir Henry Maine speaks of the English rule, and he states it more 

 perspicuously than 1 do. In the note at page 147 of the American 

 argument will be found a quotation from Sir Henry Maine. He is 

 speaking of these survivals. The whole chapter is on this subject. It is 

 the last book our lamented friend ever wrote — he says on page 80 : 



Another survival of larger pretensions 



that is to say, another survival of the old mare clausum idea which he 

 is discussing, 



is tlie English claim to exclusive authority over what were called the King's Cham- 

 bers. These are portions of the sea cut off by lines drawn from one promontory of 

 our coast to another as from Lands End to Milford Haven. The claim has been 

 followed in America, and a jurisdiction of the like kiud is asserted by the United 

 States over Delaware Bay and other estuaries which enter into portions of their 

 territory. 



If all this was wrong and the jurisdiction did not survive, that does 

 not affect my argument. I only use it as an illustration. Now to 

 pursue the observation that I made before, this idea will be found to 

 enter into the whole of the law of the sea wherever you touch it. It 

 is the basis of every general restriction that is settled, and laid up 

 among the maxims of international law. 



Take, for instance, the subject of piracy. My learned friend, Sir 

 Eichard Webster, fell into the error, and unintentionally did me the 

 injustice of supposing that my allusion to that subject was with a view 

 of drawing a parallel between killing the seals and piracy. The par- 

 allel that exists between them every man may draw for himself; that 

 was not my purpose. I allude to that principle in the law of nations 

 which finds exi)ression in giving jurisdiction to any nation to try a 

 pirate and execute him. Kow a man accused of a crime, even of iiiracy, 

 has his well known rights. He is not guilty till he is found to be guilty. 

 He is presumed innocent. And every man accused of a crime, where 

 the common law ])revails at least, has certain rights as well. He has 

 a right to be tried in the district where the crime was committed, or it 

 committed on a ship on the high seas to be tried in the country to which 

 that shi]) belongs; so that if a man is charged with committinga murder 

 on the high seas, which is all that can be said of him until he is con- 

 victed, he has a right to be tried in the jurisdiction of the country to 

 which tliat sliip appertains and forms a part, just as when committed 

 on the shore he has the common law right to be tried in the district 

 where the crime was committed, and nowhere else. 



Why is that taken away in the case of i)ir!>cy? In the case of mur- 

 der, of robbery at sea, wiiicli is what i)iracy really is, — why may a man 

 be taken into any port if the country chooses to exercise the jurisdic- 

 tion, and be tried and condemned and executed? Simply because the 



