ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 129 



from that time to this by any authority that is produced for our con- 

 sideration except a dictum of Mr. Dana, or possibly one or two of these 

 American Jurists I alhided to yesterday, wlio have been introduced 

 into public notice by my learned friends. If any person doubts that 

 proposition I commend him to a reading of the luminous judgment of 

 Chief Justice IMarshall and his eminent associates, because it was not 

 his judgment alone — the entire Court concurred in it. 



That self defence, it will be observed, was not of the existence of that 

 nation. Nobody pretended that was in any danger. It was not a right 

 in time of war. It w^as a period of profound peace. It was sim])ly a 

 protection of themselves against the comparatively insignificant conse- 

 quences of one ship trading at one colonial port; and involved no ques- 

 tion of existence, and no question of serious danger. Therefore, there 

 cannot be supposed a case that is more completely and entirely in point 

 than this case, if it is right. As we have pointed out, Lord Chief Jus- 

 tice Cockbnrn in his judgment, in the leading case of the Queen v. Eeyn, 

 speaks of this as declaring the law, and recognizes the ground upon 

 which Chief Justice Marshall puts the case. He says: 



Hitherto legislation, so far as it relates to foreigners in foreign ships in this part of 

 the sea, has been conliued to the maintenance of neutral rights and obligations, the 

 prevention of bleaches of the revenue and fishery laws, and, under particular circum- 

 stances, to cases of collision. In the two first, the legislation is altogether irrespective 

 of the three mile distance, being founded on a totally different principle, viz the right 

 of the state to take all necessary measures for the protection of its territory and rights, 

 and the prevention of any breach of its revenue laws. This principle was well 

 explained by Marshall, C. J., in the case of Church v. Eubbart. 



There is the difference, very clearly pointed out by the Lord Chief 

 Justice, between the defensive regulation in its operation, and the stat- 

 ute itself The opinion of Chief Justice Marshall is also cited as stating 

 the law, by Chancellor Kent, by Mr. Wharton, and by Mr. Wheaton. 

 Then it was followed by the case of Hudson v. Guesfier, in which the 

 question was as to the jurisdiction of the French Court, in the matter 

 of a seizure at sea — whether it could be made beyond the limits of the 

 territorial jurisdiction, for breach of a municipal regulation. That case 

 went up twice, and it went upon a different state of facts, that is, a sup- 

 posed different state of facts. It went up the first time, and it appeared 

 that the seizure was within the territorial limits. Then, on a new trial, 

 other proof showed that it was outside. Then it came up to the Supreme 

 Court of the United States a second time, and there it was held, as was 

 held before in the former Case, that the seizure on the high seas, for 

 breach of a municipal regulation, was valid; that it was an exertion of 

 the right of self defence. Then a previous case to that, which was an 

 intermediate case, I believe, after the decision of Church v. Hubbard, and 

 before the decision of Hudson v. GuesUer, was Rose v. Himely, in which 

 under a similar law a seizure had been made on the high seas, but never 

 consummated by carrying the vessel into port. The question was 

 whether that was a justifiable act of self defence. The Court divided 

 on that question, and the majority of the judges held that it was not 

 justifiable without carrying the vessel in; in other words the vessel 

 should not be seized without carrying out and continuing that seizure 

 up to the ]wint that would give the parties a chance to be heard on the . 

 question of whether the vessel was violating the regulations in question. 

 One of the judges, Judge Johnson, held that, notwithstanding that, the 

 capture was legal, and he has given an opinion which we have taken 

 the pains to quote, and which will be found in the Appendix to the 

 Argument, in wliich he reasons out the conclusion that this act of self- 

 defence did not depend, for its justification, upon bringing in the vessel, 



B S, PT XV 9 



