202 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



protection of nations requires it; simply because iu the days when 

 ])iracy was more frequent than it ever can be again owing to the 

 improvements in navigation, it was necessary to the protection of the 

 world and of maritime nations, whose ships were atioat upon the sea, 

 that they should not be required to wait for the slow and possibly the 

 reluctant process of the nation from whom the pirate came, to proceed 

 and enforce it. 



The same rule prevails about carrying a flag. What is the reason, 

 pray, why I may not put to sea iu a vessel of my own u[)on some honest 

 and innocent pursuit without carrying the flag of my country or any 

 other? 



Senator Morgan. — May you not? 



Mr. Phelps. — No ; I may not. I understand it to be settled law that 

 a vessel may be overhauled by the armed vessel of another nation unless 

 it carries some known flag. 



Senator Morgan. — Overhauled by the armed vessel of any nation ? 



Mr. Phelps. — Yes, unless it carries some known flag and hails from 

 some known port. 

 , Mr. Justice Harlan. — Will you state the proposition again? 



Mr. Phelps. — That a vessel is required, or may be required, on the 

 high sea, to sail under the flag of some nation which she is authorized 

 to carry. 



The President. — If there is a proper flag. It must be under the 

 flag of its nation. 



Mr. Phelps. — Yes — so that she "hails", as the seamen say, from 

 somewhere. 



Lord Hannen. — I think the Senator's doubt was one that passed 

 across my mind — whether it was obligatory literally to carry a flag, 

 which means a flag of some nation. 



Mr. Phelps. — I used the word "flag" figuratively. I mean to say it 

 must be registered — legally set forth. When I say "carry" a flag, of 

 coarse I do not mean that she would never be found at sea without a 

 flag flying. 



Senator Morgan. — It must have a license. 



Mr. Phelps. — It must have a license — it must have a home — it must 

 have papers. 



The President. — Covered by the flag of the nation. 



Mr. Phelps. — Yes, having a nationality. 



Senator Morgan. — That is very different from the right of a man to 

 go on the King's highway even in a foreign country. 



Mr. Phelps. — Then there is the other idea we have encountered 

 before, which I only allude to now : A vessel may be pursued on the 

 high sea for breaking a municipal regulation. That has become settled 

 by many judicial decisions. It must be undoubtedly /Ves/i pursuit, but 

 a vessel that goes into the jurisdiction of a municipal regulation, and 

 infringes it and takes to flight, may be pursued and arrested on the 

 high sea. Those are specimens of what I may call the general restric- 

 tions of this 3 mile limit, the jurisdiction exercised over estuaries, bays, 

 fjords and waters of that sort — the requirements of registering and 

 nationality — the laws that apply to pirates. — Every one of the general 

 restrictions that, irrespective of the requirements of a particular nation 

 or a particular case, vessels are subject to on the high seas, are traceable 

 to that. They come back to that. Those are some of the limits to the 

 freedom of the sea, which have never been surrendered. 



Then when we come to special laws, like those that have been indi 

 cated before — the Hovering laws of Great Britain and of the United 



