252 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



admit, is a piece of legislation, and assumes the right — a limited right, 

 it is true — of passing laws operative upon the high seas. 



All the doubt and all the controversy which have arisen in reference 

 to this question of the exercise by a nation of the right of self-defence 

 upon the higli seas, turns upon the validity of regulations of that sort, 

 regulations which go beyond the mere shaping of the right of self- 

 defence and prescribing how it shall be exercised, and undertake to 

 create distinct offences. The power of a nation to do that has been dis- 

 puted, and may perhaps be still the subject of dispute. It will be 

 observed that tliis exercise, even of the right of legislation in the cases 

 which I have mentioned, does not involve an assum[)tion of a general 

 autliority to legislate over the seas. It is limited strictly to the case 

 of self-defence, and is calculated to provide means by which that right 

 of selfdefence may be more efficiently exerted; but, nevertheless, it 

 does partake of the quality of legislation. Whether it is valid or not, 

 has been disputed. 



That precise question arose in the Supreme Court of the United States 

 in the case of Jiose vs. Tlimely, which is reported in 4th Cranch,page 241. 

 The circumstances of that case were substantially these: The French 

 authorities Jiad made an ordinance prohibiting vessels from sailing 

 within two leagues of the island of San Domingo at certain places, and 

 under certain conditions. A vessel was captured that had violated that 

 ordinance, but the cai>ture was made outside of the two-league limit. 

 The question was whether that capture could be sustained, that is to 

 say, whether a capture by one nation u})on the higli seas of a vessel 

 belonging to anotlier nation, which had been engaged in violating a 

 municipal regulation, was lawful. Chief Justice Marshall was of opin- 

 ion that it ^vas not lawful; but a majority of the members of the court 

 did not agree with him upon that point, and so the question was passed 

 over without being decided, the case being disposed of upon another 

 point. It again arose for decision in the case of Hudson vs Guestier, 

 6th Cranch, 281. That case involved a violation of the same ordinance, 

 and the capture had been made outside of the two-le.igue limit. This 

 case of Hudson vs Guestier is reported twice. It came before the 

 Supreme Court on two occasions; and the proof upon the last occasion, 

 which is the one to which I refer, as to the locality of the capture, was 

 different from what it was when it came before the court in the lirst 

 instance. In the last instance the evidence showed that the capture 

 had taken place outside of the two league limit. Upon the second argu- 

 ment it was held by a majority of the court that the ca]>ture was lawiul; 

 and the expressions in the opinion of Mr. Chief Justice Marshall, in 

 Rose V. Hiniely — his dicta to the contrary effect — were overruled; and 

 therefore, so far as the Supreme Court of the United States is con- 

 cerned, it is held that regulations of the character I have mentioned, 

 even when they go further than to merely provide for capturing a vessel 

 that is actually engaged in a violation of the right of a nation, and con- 

 stitute a })ro1iibited area within which a vessel must not go, whether 

 upon a rightful or a wrongful mission, are in accordance with inter- 

 national law. 



Let me say, however, that the United States, upon this argument, 

 avoids all controversy of that sort. We do not ask for the application 

 of any doctrine, even although we might, to the effect that we can estab- 

 lish any ])tohibited area on the high seas and exclude the vessels of 

 other nations from it. We do not ask to have it determined that the 

 United States has the right to say that the offence of pelagic sealing 

 when committed by vessels of another nation is a crime for which we 



