128 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



members -weakens it and is injurious to its preservation. It owes tliis also to the 

 members in particular, in consequence of the very act of association ; for those who 

 compose a nation are united for their defence and common advantage, and none can 

 justly be deprived of this union and of the advantages he expects to derive from it, 

 \vhil(3 he, on his side, fulfils the conditions. The body of a nation cannot, then, 

 abandon a province, a town, or even a single individual who is a part of it, unless 

 compelled to it by necessity, or indispensably obliged to it by the strongest reasons 

 founded on the public safety. 



It will be seen, therefore, that the right of self-defence is not confined 

 to the mere defence of the existence of the nation, as from an enemy that 

 threatens its conqnest or its destruction. It extends to every interest 

 of the nation tliat is worth protecting, to every individual of the nation, 

 to every part of the nation, and it is a paramount right. What is the 

 limit and where is the limit of the place of its exercise? Must the 

 nation remain on its soil and stand on the defensive until it is attacked? 

 Nothing is more fundamental, than that the right of self-defence may 

 be exerted wherever it is necessary to exert it, on the high sen, even 

 on the territory of a friendly nation. You may even invade the terri- 

 tory of a nation with which you are at peace, to do an act which the 

 just defence of the country really rendeis necessary. So far from there 

 being any objection to enforcing this right upon the high sea, it may 

 be enforced upon foreign territory. Says Vattel on this subject, page 

 128, section 289 — ancl 1 read from page 148 of the argument: 



It is not easy to determine to what distance the nation may extend its rights over 

 the sea by which it is surrounded. 



And Chancellor Kent made the same observation in different lan- 

 guage. We have cited a number of cases on this point, and among 

 them the case of Church v. Hubbard, the decision of the Supreme Court 

 of the United States when Chief Justice Marshall presided over it, and 

 which my learned friend in his observations on the case, thinks was not 

 only right, but was so plainly right, that he could hardly think it 

 necessary for the Chief Justice to have delivered an opinion in support 

 of this conclusion. I agree with him. Now what was that case exactly? 

 It was a case where a country had undertaken by one of its municipal 

 regulations to prohibit trade with its colony, and the right of a nation 

 to do that has become sufficiently recognized to be entirely established. 

 A ship set out to infringe that Regulation by trading with a port of 

 that country. It was captured on the high sea by the nation whose 

 Regulation was about to be infringed. The evidence was sufficient to 

 show that the presence of the vessel near the coast did have for its 

 object and intent, a trading voyage to the prohibited port. It had 

 infringed the Regulation by coming within the line which the Regula- 

 tion prescribed, but which was a line upon the high sea twelve miles 

 out — it had not infringed the territory of the nation — it had infringed 

 the Regulation which "took effect, if it took effect at all 12 miles out at 

 sea, and the question was whether the capture was justified by the law 

 of nations. The question arose in such a manner that it could not be 

 justified at all, except upon established principles of law, because the 

 question arose in an action upon a policy — an action upon a contract, 

 in which the rights of the parties, whatever the rights of the nation 

 may have been thought to be, must be determined by the existing and 

 established law. 



The Chief Justice makes it so clear, as he always made every thing 

 clear in regard to which he spoke or wrote — ho made it so plain that 

 by the established principles of international law that right of self 

 defence could be exerted on the high sea, that the vessel could be caj)- 

 tuiedand brought in and condemned, that it never has been questioned 



