146 ARGUMENT OF THE UNITED STATES. 



the usage of nations, it is not regarded as so far absolute that a nation 

 may exclude altogether f oin within the range of cannon shot the 

 ships of another country, innocently navigating, and violating no 

 reasonable regulation of the municipal law. But the power which may 

 be exerted within that limit is only coextensive with the just require- 

 ments of the self protection for which it exists, although undoubtedly 

 the nation exercising the jurisdiction must be allowed, so long as it acts 

 in good faith, to be its own judge as to the regulations proper to be 

 prescribed, and the manner of their enforcement. 1 



This somewhat indefinite area of a greater or less jurisdiction over 

 the marginal sea, which has thus come to be recognized and conceded, 

 though accorded for the purposes of national self-protection, is by no 

 means its boundary. It illustrates the right of which it is an example, 

 but does not exhaust it. It is but one application of the principle out 

 of many. The necessity which gave rise to it justifies likewise the 

 larger power, and further means of defence, which may from time to 

 time be required. No nation, in whatever statute or treaty it may 

 have assented to the three-mile or cannon-shot limit of municipal juris- 

 diction, has ever agreed to surrender its right of self defense outside 

 of that boundary, or to substitute for that right the contracted and 

 qualified power which is only one of the results of it, and which must 



'Says Sir Robert Phillimore, in his opinion in Queen v. Kehn: "The sound con- 

 clusions which result from the. investigation of the authorities which have been re- 

 ferred to appear to me to he these: The concensus of civilized independent states 

 has recognized a maritime extension of frontier to the distance of three miles from 

 low water mark, because such a frontier or belt of water is necessary for the defence 

 and security of the adjacent state. 



"It is for the attainment of these particular objects that a dominion has been 

 granted over these portions of the hi.uh seas. 



" This proposition is materially different from the, proposition contended for, viz: 

 that it is competent to a state to exercise within these waters the same rights of 

 jurisdiction and property which appertain to it in respect to its lauds and its ports. 

 There is one obvious test by which the two sovereignties may be distinguished. 



"According to modern international law it is certainly a right incident to each 

 state to refuse a. passage to foreigners over its territory by land, whether in time of 

 peace or war. But it does not appear to have the same right with respect to pre- 

 venting the passage of foreign ships over this portion of the high seas. 



"In the former ease there is uojus tranaitus; in the latter ease there is. 



"The reason of the thing is that the defence and security of the state does not re- 

 quire or warrant the exclusion of peaceable foreign vessels from passing over these 

 waters, and the custom and usage of nations has not sanctioned it." 



Lord Cockbnrn, in Queen v. Kehn, speaking of the claim that a nation has the right 

 of excluding foreign ships from innocent passage within the three-mile limit, says 

 it is a "doctrine too monstrous to be admitted." And again, "No nation has arro- 

 gated to itself the right of excluding foreign vessels from the use of the external 

 littoral waters for the purpose of navigation." 



