plish that great end, have, under principles everywhere recog nized, both in the law of nature and in the concurring municipal jurisprudence of all civilized States, a property interest in that herd."1 Mr. Phelps's Written The question of the "Right of the United States to protect their sealing interests and industry" was discussed by Mr. Phelps. The case of the United States had, he said, thus far proceeded on the ground of a national property in the seal herd itself. But, admitting for the sake of the argument that no such right of property existed, and that the seals were to be regarded, outside of territorial waters, as feræ naturæ in the full sense of the term, the question remained whether, upon this hypothesis, "the industry established and maintained by the United States Government on the Pribilof Islands, in the taking of the seals and the commerce that is based upon it, are open to be destroyed at the pleasure of citizens of Canada by a method of pursuit outside the ordinary line of territorial jurisdiction, which must result in the extermination of the animals." Continuing, Mr. Phelps said: "The ground upon which the destruction of the seal is sought to be justified, is that the open sea is free, and that since this slaughter takes place there, it is done in the exercise of an indefeasible right in the individuals engaged in it; that the nation injured can not defend itself on the sea, and therefore upon the circumstances of this case can not defend itself at all, let the consequences be what they may. "The United States Government denies this proposition. While conceding and interested to maintain the general rule of the freedom of the sea, as established by modern usage and consensus of opinion, it asserts that the sea is free only for innocent and inoffensive use, not injurious to the just interests of any nation which borders upon it; that to the invasion of such interests, for the purposes of private gain, it is not free; that the right of self-defense on the part of a nation is a perfect and paramount right to which all others are subordinate, and In support of his propositions Mr. Carter cited Mackenzie's Studies in Roman Law, 6th ed., ch. II. 174; Poste's Gaius, 2d ed., sec. 68; Savigny's Possession in the Civil Law, compiled by Kelleher; Pufendorf, Law of Nature and Nations, lib. III., c. 1, sec. 3; Bracton, lib. II., c. 1; Bowyer, Modern Civil Law, 72; Cooper's Justinian, lib. II., lit. 1, secs. 11-15; The Case of Swans, 7 Coke, 15b; Child v. Greenhill, 3 Croke, 533; Keeble v. Hickeringill, 11 East. 574; Amory r. Flyn, 10 Johns. 102; Eoff r. Kilts, 15 Wend. 550; Baron Wilde, in Blades r. Higgs, 12 C. B. N. S. 512; Earl of Abergavenny . Abergavenny, 8 C. B. 768; Davies r. Powell, Willes's Rep. which upon no admitted theory of international law has ever been surrendered; that it extends to all the material interests of a nation important to be defended; that in the time, the place, the manner, and the extent of its execution it is limited only by the actual necessity of the particular case; that it may, therefore, be exercised upon the high sea as well as upon the land, and even upon the territory of other and friendly nations, provided only that the necessity for it plainly appears; and that wherever an important and just national interest of any description is put in peril for the sake of individual profit by an act upon the high sea, even though such act would be otherwise justifiable, the right of the individual must give way, and the nation will be entitled to protect itself against the injury, by whatever force may be reasonably necessary, according to the usages established in analogous cases.” diction. For the reason, said Mr. Phelps, that the sea Defense and Juris- was in early times the theater of lawless violence, the assumption of national dominion over adjacent waters became necessary to self-protection, and was therefore generally assented to. The mare liberum in such waters gave way to mare clausum. When commerce became more extensive and better able to protect itself, "the modern conception of the freedom of the sea, first formally set forth by Grotius, came gradually to be established." Even then the contrary doctrine was maintained by Sir Matthew Hale and Selden; and England and other maritime powers surrendered their control over the seas slowly and reluctantly, and only "for the purposes of just, innocent, and mutually profitable use," conducive to the general good, and not violative of the rights of others. Nor was the right of selfdefense on the sea ever surrendered by any nation. In using the sea, nations must submit to first principles of law and pay due regard to the rights of others; and these conditions "are enforced by the injured party because they can be enforced in no other way."3 The right of self defense by a nation upon the sea and the right of municipal jurisdiction over adjacent seas were, said Mr. Phelps, totally distinct. The right of jurisdiction, though "only a branch of the general right of selfdefense," must be limited by an ascertained or ascertainable line, but the right of self-defense was "subject to no territo I Maine, Int. Law, 75-77. 2 Story, J., The Marianna Flora, 11 Wheaton, 41; 1 Kent, Comm. 27. 3 Vattel, secs. 17, 18, 19; Twiss, Int. Law, Part 1. sec. 12; Phillimore, Int. Law, ch. 10, secs. 111, 114; Hall, Int. Law, ch. 7, sec. 83. 1 rial line." In Church v. Hubbart,' the Supreme Court of the United States unanimously held that "the right of a nation to seize vessels attempting an illicit trade is not confined to their harbors or to the range of their batteries." The same principle was stated by Chief Justice Cockburn in Queen v. Keyn,3 referring to Church v. Hubbart, which was also cited by Kent,' Wharton, and Wheaton," and was followed in Hudson v. Guestier. In this relation Mr. Phelps animadverted on Dana's criticism, in his notes to Wheaton, of the case of Church v. Hubbart. He also maintained that the right of self-defense was as strong in the territorial jurisdiction of a friendly state as on the high seas, referring in this relation to the case of Amelia Island, to the destruction of the steamer Caroline by a British force within the waters of the United States in 1838,0 and to the bombardment of Greytown." "A still more.strik ing illustration," said Mr. Phelps, "of the exercise of the national right of self-defense upon the high seas, at the expense of innocent commerce and to the entire subordination of private rights, which, except for the consequences to national interests, would have been unquestionable, is found in the British Orders in Council in the year 1809, prohibiting neutral commerce of every kind with ports which the Emperor of France had declared to be closed against British trade. The effect of these orders was to arrest upon the sea the lawful trade of neutrals, not with blockaded ports, nor even belligerent ports not blockaded, but with neutral ports. Yet the validity of these orders upon the principles of international law, severe as their consequences were, was affirmed by the great judicial authority of Lord Stowell, then Sir William Scott, in several cases of capture that came before him in admiralty, upon the ground that they were necessary meas 1 Vattel, 128, sec. 289; 1 Kent, Comm. 29. 22 Cranch, 287. 32 Law Rep. 214. +1 Comm. 31. Int. Law Dig. 113. 6 Int. Law, 6th ed., 235. 76 Cranch, 281. 8 Mr. Phelps also referred to the cases of the schooner Betsey, Mason's Rep. 354, and Manchester r. Massachusetts, 139 U. S. 240. 9 Wharton's Int. Law Dig. I. 50. 10 Phillimore, Int. Law, vol. 1, Sec. CCXVI; Hall, Int. Law, p. 267, par. 34. 1 Wharton's Int. Law Dig. 226, 229, 230, 232, 233. 1 ures of self defense to which all private rights must give way." Lord Stowell's judgments in these cases had never, Mr. Phelps declared, "been criticised or disapproved by any court of justice, nor by any writer of repute on international law." He also referred, as another very forcible illustration of the principle for which he contended, to the exclusive right once asserted by Great Britain to the fisheries off the coasts of Newfoundland and Nova Scotia, saying that it was "contended by Great Britain and conceded by the United States that all those fisheries, both within and without the line of territorial jurisdiction, were, previous to the Revolutionary war, the exclusive property of Great Britain, as an appurtenant to its territory." Mr. Phelps further argued that the right of selfdefense existed in peace as clearly as in war. This was shown by the treatment accorded the pirate. Nor was there, he said, any question that a nation whose laws prohibit slavery may capture on the high seas any vessel laden with slaves intended to be landed on her coast, or any vessel sailing for the purpose of prosecuting the slave trade on her shores. Nor was the sea free to any vessel not carrying the flag of some country, and shown by its papers to be entitled to carry the flag it bears. So a vessel guilty of an infraction of revenue or other law in territorial waters may be pursued and captured beyond them. On this principle rested the British act2 restricting the passage of a vessel on the high seas, when approaching Great Britain from an infected port, as well as the restraints put on neutrals in time of war. and Search in Time of Peace On the principle of self-defense, said Mr. Right of Visitation Phelps, was based the right of visitation and search of private vessels of one nationality on the high seas by the armed ships of any other nationality. It had been said that this right was confined to time of war. This assertion proceeded upon the ground that only in time of war could the necessity for it arise. But no one, declared Mr. Phelps, had "ever claimed that the right should be denied in time of peace if an equal necessity for it exists;" and when such necessity had been regarded as existing, the right had been asserted. Prior to the war of 1812, Great Britain "claimed the right in time of peace The Success, 1 Dod. 133; The Fox, 1 Edwards, 314; The Snipe, 1 Edwards, 382. 26 Geo. IV. c. 78. British Claim of Impressment. to search American ships on the high seas for British subjects serving as seamen." This claim, said Mr. Phelps, had "been disused, but never abandoned;" the United States objected to it on the ground "that it was founded upon no just necessity or propriety," but, "had it been a measure in any reasonable sense necessary to self-defense on the part of Great Britain, its claim would have rested on a very different foundation, and would have been supported by the analogy of all similar cases." Mr. Phelps further declared that the "right of search is exercised without question as against private vessels suspected of being engaged in the slave trade." Lord Aberdeen, in 1841, claimed the right of visitation of vessels on the high seas in time of peace, far enough at least to ascertain their nationality.1 "Mr. Webster," said Mr. Phelps, "disputes this right, but has to admit that it does exist when specially necessary." The subordination of private right to national necessity had been well stated by Manning, and had been laid down by other writers.* 2 eration of Statutes and Regulations. 3 As examples of cases, exceptional in charExtraterritorial Op- acter, where necessity had dictated acts of self-defense, Mr. Phelps also cited various statutes and regulations, which were referred to in the Case of the United States, for the protection of various fisheries outside of the ordinary territorial waters. He said: * * * "An effort is made in the British Counter Case to diminish the force of the various statutes, regulations, and decrees above cited, by the suggestions that they only take effect within the municipal jurisdiction of the countries where they are promulgated, and upon the citizens of those countries outside the territorial limits of such jurisdiction. In their strictly legal character as statutes, this is true. But the distinction has already been pointed out, which attends the operation of such enactments for such purposes. Within the territory where they prevail, and upon its subjects, they are binding as statutes, whether reasonable and necessary or not. Without, they become defensive regulations, which if they are reasonable and necessary for the defense of a national interest or 1 Br. and For. State Papers. 4 Azuni, Part II. ch. III. art. 2, sec. 4, p. 178; Paley, Moral Philosophy, Book 6, c. 12; Grotius, III. c. 1, sec. 5; Wheaton, Law of Nations, |