ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 255 



instance of tlie exercise of this right of self-defence. The rules derived from the 

 practice of nations governing the exercise of such right of capture, with such other 

 reasonahle rules as the belligerent nation may prescribe, are not municipal laws, in 

 the full sense, but regulations designed to govern the conduct of the officers and 

 agents of the belligerent, and to prevent abuses of the right which would make the 

 belligerent answerable to the neutral nation whose ships have been caiitured. 



The prize courts which administer these rules, although proceeding according to 

 judicial methods, are not really courts administering justice between man and man, 

 like instance courts, but agencies for the purpose of informing the belligerent sov- 

 ereign whether he ought to sustain a capture as regular and rightful, or admit it to 

 be a wrong, for which reparation is to be made. (Rose v. Himely, opinion of John- 

 son, J., 4 Cranch, 282.) 



Ninth. The notion that this right of self-defence is a purely belligerent right and 

 cannot be exerted in time of peace is unfounded. It proceeds upon the manifestly 

 erroneous assumption that the rights of a nation upon the seas cannot be attacked, 

 or endangered, except in time of war. That the instances calling for the exercise 

 of the right in time of war are more frequent, and that they are comparatively rare 

 in time of peace, is true ; but that they may, and do, arise in time of peace is equally 

 true. 



Tenth. If it were true that a nation could not exercise in time of peace any act of 

 force to protect its rights, it would follow that a nation could not interfere with a 

 vessel under a diiferent flag which was hovering on her coast, outside of the three 

 mile limit, with an openly avowed intention of evading the revenue laws of the 

 nation; or interfere with a vessel hovering in like manner and at a like distance 

 from the coast of a nation's colony with an openly avowed intention of engaging in 

 illicit trade with such colony; or interfere with a foreign vessel hovering outside of 

 the three mile limit on the coast of a penal colony with an avowed intention of run- 

 ning in at a favorable moment and rescuing convicts; nor, if this were true, could a 

 nation prevent a foreign ship with an infectious disease on board from coming within 

 a distance of four miles from a port, even though it was reasonably certain that the 

 disease would thereby, and at that distance be communicated to its people. Such 

 conclusions would be repugnant to reason, as well as to the actual practice of nations. 



Eleventh. The municipal laws or rules adopted by nations to govern the exercise 

 of the right of self-defence are not always rigidly limited to a regulation of that 

 right ; but sometimes go further and seek to exercise a limited legislative power beyond 

 the territorial limits of the nation. So far as they have the latter purpose in view 

 they are exceptional, and can be defended only upon grounds of special necessity. 



Rules and regulations providing for the seizure and condemnation of a vessel 

 actually engaged in running a blockade would be a mere regulation of the strict 

 right of self-defence and be open to no objection; but if they went further and pro- 

 vided for the trial and punishment of the officers and crew, or for the seizure and 

 condemnation of vessels for past breaches of a blockade, they would transcend the 

 necessities of self-defence and assume the character of leqislation. The arrest, trial, 

 and conviction of persons for acts done by them on the high seas assume the right 

 of legislating for the high seas; and the same thing may be said of a law which sub- 

 jects a vessel to seizure and condemnation, not for a present invasion of the rights 

 of a nation, but for one which has been completed and is past. 



And so, also, it might be contended that a municipal law designed to prevent 

 smuggling, or illicit trade, by prohibiting vessels from hovering within certain pre- 

 scribed distances from the coast, transcended the requirements of necessary self- 

 defence and partook of the character of legislation. The actual practice of nations 

 has been not to draw a rigid line between the two descriptions of power, but to 

 sanction reasonable restrictions and jtrohibitions imposed by a nation, although par- 

 taking of the character of legislation, when they were fairly designed to secure the 

 purposes only of a just self-defence. (Church t'. Hubbart, 2 Cranch, 287.) 



Twelfth. But it is not necessary for the Government of the United States to insist, 

 nor does it insist, upon a right to punish individual citizens of other nations who 

 have been engaged in pelagic sealing as having been guilty of a crime, nor upon a 

 right to seize and condemn vessels for having in the past been guilty of pelagic seal- 

 ing, nor upon a right to establish any area of exclusion around any part of its terri- 

 tory. It insists only that if it be determined that it has a property in the Alaskan 

 seal herd, or a property interest in the industry which it maintains upon the Pribilof 

 Islands, that it follows, as a necessary consequence, that it has the right to prevent 

 the invasion and destruction of lihose property interests, or either of them, by pelagic 

 sealing, by the employment of such force as is reasonably necessary to that end. 



Thirteenth. The Government of the United States conceives that, if its contention 

 that it has the property interests asserted by it, one or both, be established, and a 

 vessel iitted out for the purpose of pelagic sealing, under whatever flag, should 

 approach the neighborhood of the Pribilof Islands and engage in the taking of seals 

 at sea, it would have the right to prevent such taking of seals in the only manner in 



