216 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



that ensued between Mr. Webster and the English Government on that 

 subject is set forth, and there again the law that the British Govern- 

 ment invoked was conceded if the act was necessary to their defence in 

 what I could hardly call war — it was a little insignificant rebellion 

 that came to nothing — that might almost have been put down by the 

 police. But whatever you call it, if it was necessary to do this act, 

 their right to invade even the friendly territory of the United States 

 was conceded. The same in regard to these Mexican cases — the Amelia 

 Island case — several of those cases cited in our printed argument — 

 where the Government of the United States asserted a right to go over 

 into foreign territory and break up nests of criminals — of marauders — 

 which the country had failed to do either because it was not strong 

 enough, or probably because it was not active enough. In the diplo- 

 matic correspondence that ensued the right to do that was not only 

 asserted, but -was conceded, and no satisfaction ever was made or 

 demanded. I might say on that subject of the "Caroline" case before 

 leaving it, that the only outcome was the indictment of the British cap- 

 tain. Captain McLeod, who commanded that expedition, went into the 

 American port and cut out the vessel, and in doing so a person was 

 killed on American soil. He was arrested and brought to trial in the 

 United States Circuit Court, and he was acquitted. He was tried before 

 a very able Judge, and 1 have never heard the propriety of that acquittal 

 doubted. Of course he had commanded an expedition that had killed 

 a man, and there was no war between his country and that to which 

 this person belonged or where the oflence was committed; but he was 

 acting under the orders of his Government, and the Government was 

 acting under the justification of what they claimed to be a necessity; 

 and if that necessity did not exist, that was a matter that must be dis- 

 cussed between the nations, and for which this officer could not be 

 made responsible; and therefore his acquittal not only took place, but, 

 so far as I know, it has always been agreed it was a proper acquittal. 

 I am well warranted in saying that if the jury had been so far carried 

 away by popular excitement as to have convicted that man under the 

 circumstances, and if the learned Court before whom he was arraigned 

 had approved the conviction and affirmed it, the United States Govern- 

 ment would have interposed and pardoned him upon the grounds I 

 have stated. 



I do not refer speciallj'^ to what my learned friends have said about 

 these various cases, because they do not touch the only point upon 

 which they stand, the exercise of self defence. 1 take leave of the 

 general proi)ositiou in support of which this evidence is advanced, as 

 well as for its uses upon other branches and topics of th^ case, by 

 repeating that it presents to my mind the crucial, the final, the deter- 

 minative enquiry on this subject of the freedom of the sea: whetlier or 

 not conduct of that character, and with those consequences, is conduct 

 to which a nation must submit at the instance of individuals, or against 

 which it has a right of reasonable protection I The means by which 

 that protection is to be enforced is a question not addressed to this 

 Tribunal at all. You are not asked to say by what means any right 

 which the United States Government have here, shall be enforced. If 

 regulations, which stand upon no right — which are the result of the 

 concurrent agreement of the nations — if those are adopted, then, of 

 course, means must be adopted as a part of the regulations by which 

 they can be carried into effect; because if the regulations are not a 

 matter of right, then the enforcement of tliem would not be a matter 

 of right, except so far as the agreement on which they were founded gave 



