96 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



of South America, seldom frequented by vessels but for the purpose of illicit trade, 

 the vigihuice of the Government may be extended somewhat further, and foreign 

 nations submit to such reguhitions as are reasonable in themselves and are really 

 necessary to secure that monopoly of colonial commerce, which is claimed by all 

 nations lioldiiig distant jiossessions. 



If this right be extended too far, the exercise of it will be resisted. It has occa- 

 sioned long and frequent contests which have sometimes ended in ojjen war. The 

 English, it will be well recollected, complained of the right claimed by Spain to 

 search their vessels on the high seas, whicli was carried so far that the Guarda Costas 

 of that nation seized vessels not in the neighborhood of their coasts. This practice 

 was the subject of long and fruitless negotiations, and at length of open Avar. The 

 right of the Spaniards was supposed to be exercised unreasonably and vexatiously, 

 liut it never was contended that it could only be exercised within the range of the 

 cannon from their batteries. 



Indeed, tiie right given to our own revenue cutters to visit vessels four leagues from 

 our coasts is a declaration that in the opinion of the American Government no such 

 principle as that contended for has a real existence. Notliing, then, is to be drawn 

 from the laws or the usages of nations, which gives to this ]»art of the contract 

 before the court the very limited cou.struction whicli the plaintiff insists on, or 

 which proves that the seizure of the Aurora by the I'ortuguese governor was an act 

 of lawless violence. 



The Aurora was on the liigh seas at that time. This was a case upon 

 a policy of marine insurance, and the ])olicy contained a warranty that 

 the vessel should not engage in prohibited trade. The vessel had been 

 talcen by a Portuguese force as having been engaged in a trade pro- 

 hibited by the law of Portugal, and she Avas captured far outside the 

 three-mile limit and for an offence committed outside the three-mile 

 limit. 



The President. In time of peace? 



Mr. Cartek. In time of peace. This vessel had, it was alleged, 

 come within this limit — I do not remember the limit — but it was much 

 more than three miles. The vessel had, as was alleged, committed an 

 offence against that law of Portugal designed to protect her trade; and 

 having committed that offence, the Portnguese cruiser, or some other 

 Portuguese force seized her, and the insurance companies set that up 

 as a defence against their liability. The argument was, on the part of 

 the plaintiff" in the suit, that she was not engaged in prohibited trade, 

 and that if slio were, she could not be captured by a Portuguese cruiser 

 in the manner in which she had been; and that no nation had any 

 authority to say that a vessel should not come within a certain distance 

 greater than the three miles. Mr. Chief Justice Marshall was of a dif- 

 ferent opinion, as ai)pears from the passage I have just read. 



Mr. Justice Harlan. What is the date of that decision? 



Mr. Carter. 1804 or 1805, perhaps, I do not remember. 



Mr. Phelps. This opinion is ])rinted on page 181 of our Argument. 



The President (to Mr. Carter). Is it your contention that this 

 X3rinciple prevails at the present day in international law? 



Mr. CAii'i'ER. It is our contention, and we suppose that there could 

 be no dispute on that ])oint. 



Sir Charles Kussell. It may be open to observation. 



Mr. Carter. Wlien the other side come to make their observations 

 they will have, if they question this decision, to upset the opinion of 

 Lord Chief Justice Coburn iu Regina v. Kehn^ a case decided not long 

 ago. That case engaged the attention of a large number of judges in 

 Great Britaim Chief Justice Marshall's decision was qnoted by Lord 

 Chief Justice Coburn with entire approbation. Now then, what was 

 the character of this assertion of authority by Eussia? Was it an 

 assertion of general dominion over the seas, of an extension of her ter- 

 ritory over ail the Beiing Sea and part of the Pacific Ocean — of a right 

 to legislate against Ibreigu nations in respect to these seas — of a right 



