208 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



mig^ht turn the scale and make the rebellion succeed. That was Mr. 

 Seward's argument. It was said on the otlier hand, that the rule has 

 never been extended to civilians; that it stops at military and naval 

 officers, and if you go away from that, you get into such secondary and 

 indirect consequences that there is no possible limit to the cases that 

 can be cited where a vessel is carrying passengers that are really in aid 

 of the war. But the coetroversy came to an end when Mr. Seward con- 

 ceded that if he was right in classing ambassadors with military and 

 naval oflicers and bringing them within the oi)eration of established 

 rules, then he should have seized the vessel. Therefore, in no event, 

 could he board the vessel and take certain persons out of it. 



The President. — It must be judged and go to a Prize Court. 



Mr. Phelps. — Yes: if he seizes the vessel and brings it in, then the 

 parties have a right to be heard and they are to be heard upon the 

 truth of the assertion. They may show if they please, that the men 

 were not ambassadors, but ordinary passengers, or whatever the fact 

 was, but if you board the vessel and take the men out there is no judi- 

 cial proceeding. And that is the point on which the Sui)reme Court of 

 the United States divided in the case of Rose v. Himely, where a capture 

 was made by a French cruiser of a vessel she was entitled to capture, 

 but it was not carried into port. The majority of the Court thought 

 the capture could not be sustained, but Justice Johnson thought other- 

 wise. The case of the United States as x>resented by Mr. Seward comes 

 still further within the principles of the objection to the capture in the 

 case of Rose v. Hhnely. That is all there was in the " Trent" case. 



We have stated many other instances in the argument: I need not 

 go over them: I am sure the Tribunal have read what we have under- 

 taken to say on that subject; and if they have, they do not- require it 

 to be repeated. Take the case of St. Helena, where Great Britain pro- 

 hibited vessels from coming within 12 leagues; quite outside the terri- 

 torial waters — virtually excluded them from coming there at all. Sup- 

 pose a neutral vessel, not a French or a British vessel, but an American 

 vessel, engaged in the transportation of passengers on the high seas, 

 no war then existing, because the war was over with the final surrender 

 of Napoleon. What is to hinder a vessel on the high seas, away from 

 territorial waters, from carrying a passenger for hire ? It is a per- 

 fectly legitimate and lawful business. Why was it prohibited? Now 

 into the necessity of that prohibition, or the propriety of it upon the 

 facts, I do not enter. That is a question that it is unnecessary to 

 revive at this date. Whether the Emperor should have been impris- 

 oned, or whether he should have been retained there, or whether any 

 of these measures were necessary and proper on the facts of the case, 

 are questions of fact; but supposing that we concede the premises 

 which the British Government asserted — suppose it was true that the 

 necessity of their self-defence required this measure, then what is to be 

 said of it as matter of law? Can anybody challenge it? I could go 

 on referring to cases of that sort, and referring to sui)posed cases; an 

 eminent writer has well remarked, in a passage cited here, that where 

 cases maybe supi)osed, there cases may exist; that which may be i'airly 

 and reasonably supposed may come to pass. I resi)ect fully invite any 

 lawyer, any publicist, who desires to occupy his mind with the consid- 

 eration of this question, to set his imagination at work, and see if he 

 can state any case, in which the pursuit, for profit or gain by an indi- 

 vidual, of some purpose or business, upon the high sea, .comes in con- 



