ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 105 



Senator Morgan. I trust I am not too early with the sugoestion, 

 because it is an important matter in the case, and I shall expect to 

 hear argument upon it on both sides. 



Mr. Carter. I will give to that question the attention which, from 

 the interrogatory of the learned Aibitrator, it seems to deserve. 



I have said that this position, which I am seeking to maintain, of the 

 right to self-protection as distinguished from any assertion of sover- 

 eignty, is not in contlict with the ordinary doctrine of the fi^eedom of 

 the seas in any particular. It admits that doctrine, stands upon it, 

 asserts itself only as exceptional, justitiable in cases of necessity, and 

 then justifiable only up to the extent of that necessity; but, in respect 

 to the freedom of the seas, the position wliich we maintain does assert 

 one thing, with positiveness. That is, that however free the seas may 

 be in the just sense of the word, they are not free anywhere, in any 

 quarter of the globe, at any distance from the shore — three miles or 

 three hundred miles — for the commission of tvrong, and whether a 

 thing is wiong or not when committed on thahigh seas is just as easily 

 determinable as it would be if the dominion of some municipal power 

 extended over it. In other words, our position is that there is no part 

 of the globe, on the sea or on the land, that is not under tlie dominion 

 of laiv, and under the dominion of a law which tlie courts of every 

 nation will take notice of, even the municipal tribunals, and under the 

 dominion of a law which this Tribunal, as an international one, will 

 particularly take notice of, 



1 have been thus explicit upon this subject, and have devoted to it 

 the attention I have, for the reason that I think there has been consid- 

 erable confusion about it. There is a confusion in relation to it in the 

 opinions of writers upon international law. They have not, as a gen- 

 eral rule, pointed out these two distinct and different species of author- 

 ity which a nation may exercise. They have not clearly defined them. 

 They have not placed upon them the limitations which clearly attach 

 to them. 



There is a confusion about them in the discussions of diplomatists. 

 There is a good deal of confusion on tliose two subjects in the diplo- 

 matic communications between Great Britain and America in respect 

 to the subjects of this controversy. That confusion has found its way 

 into the terms of the Treaty itself, and will be found in the phraseology 

 of the questions which are submitted to this Tribunal. That confusion 

 has arisen to a very considerable extent from the use of an ambiguous 

 word, "jurisdiction," to characterize and define both things. Both 

 these species of authority are spoken of by jurists, by lawyers, in text 

 books and elsewhere, under the general name of jurisdiction, and thus 

 that word has become one of ambiguous import. 



The word "jurisdiction " has sometimes been used, when we speak 

 of the jurisdiction of a nation, in a certain narrow and rigid sense as 

 describing the sovereign right of legislation; that is to say, as describ- 

 ing that authority the exercise of which is necessarily limited by a 

 boundary line. It has been used sometimes in that narrow sense, and 

 at other times it has been used to describe any act of authority which 

 a nation might perform, whether within that line or outside of it. A 

 similar ambiguity is found in the use of the word "jurisdiction" in 

 relation to matters of municipal law. We sometimes speak of a court 

 having jurisdiction in a particular controversy. That means that it 

 has just authority to inquire into the merits of the controversy and to 

 dispose of those merits by a definitive judgment. It means that gener- 

 ally; but we sometimes say, also, that a court has jurisdiction to do a 



