ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 251 



The answer intimated to that view in a part of the argument of Great 

 Britian is that the instances in which a nation may employ force upon 

 the high seas to protect its rights and to capture vessels by means of 

 the employment of force, were limited to cases of belligerency, and do 

 not exist in time of peace. I proceeded to say that that was not the 

 case; that although the instances were more frequent in time of war 

 where the employment of force was resorted to, still whenever the 

 necessity occurred, which was the sole foundation of the right, it was 

 resorted to in peace just as much as in war. I alluded, in support of 

 that view, to the opinion of Mr. Chief Justice Marshall of the Supreme 

 Court of the United States in the case of Church vs. Hubbart, which 

 was a case where a nation had established a regulation for the purpose 

 of protecting its colonial trade. The vessel of another country con- 

 templating an enterprise of an illicit character, in violation of the exclu- 

 sive right of the nation referred to in its colonial trade, was found 

 outside of the three mile limit actually engaged, however, in an attempt 

 to carry on this prohibited trade contrary to the regulation. She was 

 seized, carried in, and condemned, and that condemnation was fully 

 sustained by the Supreme Court of the United States. Not only was 

 the condemnation itself supported, but the regulation was also sustained 

 as a lawful one. That decision 1 had also occasion to say had been 

 cited with approval, and extended citations from it read with approval 

 by Lord Chief Justice Cockburn of the Court of Queen's Bench in 

 England, in giving his opinion in the celebrated case of the Queen vs. 

 Kehn. 



With the citations of those commanding authorities, I might well 

 leave the subject. That decision in the narrowest view of it fully sus- 

 tains the right of a nation to employ force in time of peace upon the 

 high seas for the purpose of arresting and capturing a vessel which is 

 actually engaged in an invasion of its rights. That proposition is fully 

 supported by the decision itself; and the propriety of regulations for 

 the purpose of governing the exercise of that right is supported by the 

 language of the opinion. 



It is, however, true — and a distinction is to be noticed here — that 

 regulations designed to govern the exercise of this right of self defence 

 sometimes go a step further than the mere making of provision for the 

 seizure and capture of a vessel on the high seas, when she is actually 

 engaged in an offence against the laws of the nation which undertakes 

 the seizure. They sometimes go a step further than that, and make 

 the conduct of a vessel, if it justifies a suspicion that she intends illicit 

 or prohibited trade, or intends any other violation of the laws of the 

 nation adopting the regulation, itself an offence, although, in point of 

 fact, it might be true that the vessel was not actually engaged in such 

 violation. 



When regulations of this character go to that length, they go beyond 

 the mere right of employing force, and enter the field of legislation, and 

 assume a limited and qualified right to make laws operative upon the 

 high seas. That is the nature of regulations when they undertake to 

 make acts offences which are not, in their nature, necessarily offences. 

 If a vessel is actually engaged in an attempt to carry on a prohibited 

 trade with the colony of a nation, that act is, necessarily, in itself a 

 violation of the rights of that nation; but if she is not so engaged, but 

 happens to be involved in circumstances which throw suspicion upon 

 the nature of the enterprise in which she is engaged, and justify a sus- 

 picion that she is really contemplating a prohibited trade, if there is a 

 regulation which makes that conduct, of itself, a crime, that, we must 



