FIFTIETH DAY, JULY 5™, 1893. 



Mr. Phelps. — I was discussing yesterday, Sir, as yon will remember, 

 the general question of the extent of the freedom of the sea. I was 

 endeavouring to point out that, in the progress of this subject from the 

 days when mare clausum was the law of nations, to the time Avhen the 

 opposite doctrine prevails, restrictions had been made and preserved 

 and universally recognized on that freedom which constitute its present 

 limits; that it has limits, that it must have limits, will be universally 

 conceded; the question is what are they and whence are they derived? 

 I had stated this proposition, not as necessary to this case, because, 

 as I shall proceed to show in the application of the law to the facts of 

 this case, it is not necessary to go to any such length, I had stated it, 

 because it a[»pears to me to be the foundation of the true rule on the 

 subject. That is, that the exact converse of the rule that obtains in 

 municipal law is applicable in international concerns to questions 

 between individuals and nations, — not between the individuals of one 

 nation and the individuals of another, but between individuals and 

 nations. 



It is a familiar rule, that if a man is in the exercise of a legal right, 

 no matter what he is doing, the consequences of his conduct to any 

 other persons constitute no legal objection to the exercise of his right. 

 The consequence may be destructive to others, but they have no legal 

 right to complain, whatever moral grounds they may have for remon- 

 strance. I claim the law to be the other way when tiie question arises 

 between the individual pursuing on the high seas some object of his own, 

 for gain, when the consequence becomes gravely injurious, not to say 

 destructive, to some important national interest of a nation bordering 

 upon the sea. That is the proposition. I have endeavoured to illus- 

 trate it as lying at the bottom of all these well-ascertained rules that 

 apply in peace and in war, — one set that apply to the rights of belliger- 

 ents, which do not, of course, arise in time of peace; another set which 

 apply to cases that occur in times of peace; and to point out how many 

 forms it seems to take in the reservation of territorial seas, in the opera- 

 tion of general statutes that apply all along the coast, in the operation 

 of special statutes that apply to special cases, coming down to those 

 occasions of the exercise of actual force which becomes necessary on 

 the spur of the moment, and are not preceded by any previous exigencj^ 



I have alluded to most of the belligerent rights tliat I care to refer to. 

 But there is one which has been made the subject of so nuu;h observation 

 on the other side, that while it has nothing to do with this case, except 

 as an illustration of the argument, I want to refer to it very briefly, 

 and that is, the right of search. 



In this case we have nothing whatever to do with the right to search. 

 If it was exercised in the case of these cruisers, it was exercised years 

 ago, ami that is a subject that may reaiaiii to be discussed between the 

 two nations, but is not referred here. That is one of the belligerent 



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