RIGHT TO PROTECT INTERESTS AND INDUSTRY. 151 



authority, especially when lie undertakes to overrule the greatest of 

 American judges, and the repeated decisions of the Supreme Court of 

 the United States. No other writer or judge, so far as we are aware, 

 has ever shared his opinion. And, as has been seen, the decision of 

 Chief Justice Marshall has received the approval of very great lawyers. 



In the comments in his note upon these cases, Mr. Dana does not 

 correctly state them. The decision in Church v. Hubbart was upon 

 the unanimous opinion of the court, and has never been questioned 

 except by him. The subsequent case of Rose v. Himely decided that 

 the seizure of a vessel without the territorial domain of the sovereign 

 under cover of whose authority it is made will not give jurisdiction to 

 condemn the vessel, if it is never brought within the dominions of 

 that sovereign. It would seem from some of the language of Chief 

 Justice Marshal], that he may have been of opinion that the seizure 

 itself was unwarranted, irrespective of the fact that the vessel never 

 was brought in, though this is by no means clear. Judges Livingston, 

 dishing, and Chase concurred in the decision, on the sole ground that 

 the captured ship was not brought into a port of the country to which 

 the capturing vessel belonged; and declined to express an opinion as 

 to the validity of the seizure upon the high sea, for breach of a munici- 

 pal regulation, provided the vessel had been so brought in. While 

 Judge Johnson dissented altogether, holding in the opinion above 

 referred to, that the seizure was valid, although never brought in. 

 Mr. Dana mistakes the case of Rose v. Himely in saying that it was 

 there decided that a seizure of a vessel outside of the territorial juris- 

 diction is unwarranted. And he mistakes the case of Hudson v. Gues- 

 tier, in which the contrary is distinctly held, Chief Justice Marshall 

 concurring. 



The cases of the Marianna Flora (11 Wheaton Rep. U. S. Sup. 

 Court), above cited, in which the opinion was delivered by Mr. Justice 

 Story, and the case of the Schooner Betsey (Mason's Rep. 351), a de- 

 cision of Judge Story, were to the same effect. 1 



l In the recout caso (1890) of Manchester v. Massachusetts (139 U. S. Supreme 

 Court Rep., 240), the law ou this subject was thus stated by Mr. Choate, of couusel: 

 "Without these limits were the 'high seas,' the common property of all nations. 

 Over these England, as one of the common sovereigns of the ocean, had certain rights 

 of jurisdiction and dominion derived from and sanctioned by the agreement of na- 

 tions expressed or implied. 



"Such jurisdiction aud dominion she had for all purposes of self-defense, and for 

 the regulation of coast fisheries. 



"The exercise of such rights over adjacent waters would not necessarily be limited 



