130 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



but that the seizure was valid. Tlie remaiuder of the Court thought 

 otherwise. They did uot base it upon the questiou of the validity of 

 the seizure, but they held that the seizure was never consummated in 

 the way that international law required; that the ca])t()rs had stopped 

 short of the point which was necessary to their justification. 



The President. — That is a rule of prize jurisdiction of which you 

 speak. 



Mr. Phelps. — Yes, but subsequently, in the case of Hudson v. Gues 

 tier to which I have just alluded, 



Mr. Justice Harlan. — That is in the 6th Cranch. 



Mr. Phelps. — Yes, the case of Church v. Hubbard is in the 2nd Cranch. 

 Bose V. Himely is in the 4th Cranch, and the final Case of Hudson v. 

 GuesUer is in the Cth Cranch. Now it is said the case of Hudson v. 

 Guestier over-rules the decision of Rose v. Himely and there is a line lu 

 the report of the jud^^ment of Chief Justice Marshall, that says in terms 

 that the case of Rose v. Himely is over ruled. If so, then the doctrine 

 of Judge Johnson (which goes further than it is necessary for us to go 

 here) becomes the law. I confess from the report of the case I cannot 

 see in what particular Hudson v. Guestier over-rules Rose v. Himely but 

 that is quite foreign to my purpose. Perhaps it over-rules the dicta. 

 If it is not so, the authority of the case of Rose v. Himely will show that 

 the judges who thought that seizure was not lawful, put it exclusively 

 upon the ground that it was not consummated by carrying the vessel 

 into the Court of the country, and Judge Johnson alone thought it 

 valid without. 



Hudson V. Guestier only holds that a seizure which is carried into 

 Court, as it happened to be in that case, is valid. But it is quite imma- 

 terial to our present inquiry whether the one case over-rules'the other, 

 or uot, because both cases concede our point. 



From that time to this, in no authority that is brought forward, and 

 none that I have ever seen or heard of, have the doctrines established 

 there been questioned. But again and again, by writers and judges of 

 the greatest eminence, they have been recognized and declared to be 

 right. Mr. Dana alone who edited an edition of Wheaton's International 

 Law over-rules the autlior whom he edits on this point, who had stated 

 this decision as stating the law, and thinks that the Sui)reme Court of 

 the United States was mistaken. Now in Wheaton, the author whom 

 Mr. Dana has edited, chapter 1st, part 4, page 290 of this edition, which 

 is the 8th — and this is Mr. Dana's edition, by the way — it is said: 



The independent societies of men called States, acknowledge no common arbitor 

 or judjje except such as are constituted by special compact. The law by which they 

 are governed, or profess to be governed, is deficient in those positive sanctions which 

 are annexed to the municipal code of each distinct society. Every state has, there- 

 fore, a right to resort to force as the only means for redress for injuries inflicted 

 upon it by the others, in the same manner as individuals would be entitled to that 

 remedy were they not subject to the laws of civil society. Each State is also enti- 

 tled to judge for itself what are the nature and extent of the injuries which will 

 justify such a means of redress. Among the various modes of terminating the 

 differences between nations by forcible means short of war are the following, 



giving several methods of embargo and taking possession of things 

 and retaliation and reprisal. 

 The second of these is : 



By taking forcible possession of the thing in controversy by securing to yourself 

 by force, and refusing to the other nation the enjoyment of the right drawn in 

 question. 



Another is embargo; another is retaliation, and the fourth is reprisal, 

 Mr. Justice Harlan. — Are those extracts embodied in your brief 

 anywhere ? 



