ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 245 



her legislative power over a belt three miles in width, she cannot 

 extend it so far as to exclude foreign ships. Her right to protect her 

 property or industry is not derived from her legislative power. Where 

 do you get it tlien? How does she acquire any right to protect it? 

 She has a right to protect it, just as any individual has a right to 

 protect his jH'operty, where there are no other means, that is, by /orce; 

 not by the exercise of legislative power, but by the exercise of executive 

 power — an exercise of natural power — an exercise of what you may 

 call force. Individuals can defend their rights and pro])erty by tbe 

 employment of force to a certain extent. If a man attacks me, I may 

 resist hira and subdue him and use violence upon him for that purpose; 

 and I may go as far as it is necessary for that purpose; not farther. 

 Whatever force it is necessary to employ to defend myself, I may employ 

 against him. So if a man comes upon my property, I may reuiove him, 

 if I have to carry liim five miles; and I may employ as much force as 

 is necessary for the purpose of removing him from my ijroperty; but 

 I cannot employ any more force than is necessary. 



Tliose rights of self-defence and self-protection survive to individual 

 man even in civil society, but we may not go any farther than strict 

 necessity. For the general protection of rights, members of a civil 

 municipal society must appeal to society itself. They appeal to its 

 courts for protection. They appeal to the judicial power, and that 

 furnishes a remedy. What can nations do? Is there any court to 

 which they can appeal? No; they cannot make any such appeal as 

 that. There is no tribunal into which one nation can summon another 

 nation for judgment. What can nations do? They can only use this 

 same sort of self-defensive power that an individual does. That is all. 

 That they can use under all circumstances, limited, however, by the 

 same rules and by the same boundaries which limit it in the case of an 

 individual — necessity. Whatever is necessary to be done by a nation 

 for the protection of its rights, it may do, and it may do it as an 

 individual, and it is no exertion of its legislative power at all. 



We may make that very plain and palpable by turning to admitted 

 instances of the exercise of it, and take for that purpose what are 

 commonly called belligerent rights. Here is a nation engaged in war. 

 It blockades the enemy's ports. Tbe ship of a neutral nation, friendly 

 to both parties, undertakes to enter that blockaded port, and the bellig- 

 erent that has established the blockade captures her by an exercise of 

 force, carries her into one of his own ports, and confiscates her, and 

 sells her. What kind of an exercise of power is that? jS'ot legislative 

 power, certainly. That act was committed on the high seas, and out- 

 side of the jurisdiction of any power. It therefore was not legislative 

 power. It did not operate to extend the jurisdiction of the nation 

 over the place. It was simply an act of reasonable and necessary 

 force employed for the purposes of self-defence. The nation had the 

 right to carry on the war. Its existence, perhaps, depended upon its 

 ability to subdue its adversary. It could not carry on the war suc- 

 cessfully unless it had the right of shutting up the ports of the enemy, 

 and, therefore, the necessary purposes of self-defence gave it the 

 liberty to seize the ship of another power, carry it into port, and 

 condemn it. 



That is not legislative power. It was not exerted by reason of any 

 extension of the sovereignty of the nation over the seas. It was 

 simply an exercise of self-defensive power, standing upon the principle 

 of necessity, and hmited by the principle of necessity. Wherever the 

 necessity exists that power exists. I instance the case of blockade. 

 There are other instances of belligerent rights. 



