ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 131 



Mr. Phelps. — No. I think that this was not noticed in the written 

 Argument. 



Mr. Justice Harlan. — Then will you give me the pagef 



Mr, Phelps. — It is part IV, cliapter 1, section 290, page 290 likewise, 

 of the 8th edition of "Dana's Wheaton". 



Sir EiCHARD Webster. — In the chapter about belligerent rights'? 



Mr. Phelps. — It is " International rights of States in their hostile 

 relations". Section 292, on page 292 also, says: 



Any of these acts of reprisal or resort to forcible rueaus of rerlress between nations 

 may assume the character of war in case adequate satisfaction is refused by the 

 offeudinj? State. Rei)risals, says Vattel, are used between nation and nation in 

 order to do themselves justice when they cannot otherwise obtain it. If a nation 

 has taken possession of what belongs to another, if it refuses to pay a debt, or repair 

 an injury, or give adequate satisfaction for it, the latter may seize something belong- 

 ing to tlie former, and apply it to its own advantage till it obtains payment of what 

 is due together with interest and damages, or keep it as a pledge till the offending 

 nation and so forth. 



That refers more particularly to a past injury than the prevention of 

 a present. 



The case of the Marianna Flora, in the 11th Wheaton's Eeports of 

 the Supreme Court of the United States, in which the opinion was 

 delivered by Mr. Justice Story, is to the same effect as the decisions I 

 have previously quoted, though considerably later in the history of the 

 Court, on the point of the right of self-defence; and the case will be 

 fouiid an instructive one as to the extent to which the ship of a nation 

 may go on the high seas in the right of self defence against the armed 

 vessel of another nation with which it is at peace. I cannot read that 

 long opinion; but I venture to commend it to the perusal of anyone to 

 whom it is not already familiar. The facts are that a vessel of the United 

 States Government was approached by the vessel of another nation, a 

 Portuguese armed ship, and approached so near that finally a shot was 

 fired, I believe from the Portuguese vessel. It was really an offensive 

 act by tlie Portuguese ship, perhaps not intended as offensive but rather 

 ill-advised, and the result of it was that Captain Stockton, who com- 

 manded the American vessel, captured the vessel and brought her into 

 port. The question came up in a double aspect; first, whether the shij) 

 could be held or confiscated; secondly, if not, whether Captain Stock- 

 ton was liable in damages for having made the seizure. It was claimed, 

 on the one side, that the vessel was open to condemnation, that it had 

 made an assault upon an armed vessel of the United States, and could 

 be condemned as a prize. It was claimed, on the other hand, that that 

 was not so, and that really the seizure was so unjustifiable by Captain 

 Stockton, that he was liable in damages. It was not a naval vessel of 

 the Portuguese Government. It was an armed vessel. 



The Supreme Court of the United States dismissed both those appli- 

 cations. They held, in the first place, that Captain Stockton was 

 within the exercise of his right of self-defence of the honour of his Gov- 

 ernment. He was not placed in any danger. His vessel was the supe- 

 rior force. He did not require to defend himself or his ship, and, if he 

 did, it was not necessary to capture the other ship. But the Court put 

 it upon the ground that an officer of the Navy of the United States 

 had a right to protect the honour of his flag against being assaulted and 

 fired upon, and that, therefore, under tlie circumstances, he was right 

 in capturing the vessel; and was not responsible in damages. They 

 held, on the other hanjl, that in view of what the mistake really was 

 on the x)art of the foreign vessel, upon an examination of the facts, not 

 as they appeared to Captain Stockton, but as they actually took place. 



