ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 9 



their relations one with another. So far as they have by agree- 



730 ment incorporated into the rules which are to regulate their 

 mutual arrangements, relations and conduct, and so tar only, can 



there be said to be an incorporation of the rules of morality and of 

 justice, as to which nations as well as men differ : so far and so far only 

 can they be said to be incorporated into international law. In other 

 words, international law, as there exists no superior external power to 

 impose it, rests upon the principle of consent. In the words of Grotius, 

 Placuit ne genUbiis? is there the consent of nations? If there is not 

 this consent of nations, then it is not international law: and I think it 

 is very easy to illustrate that that must be so — that without that con- 

 sent there cannot be said to be an imprimatur^ which can give force 

 and efficacy to international law. If it were not so, international law 

 would be in a constant state of flux and uncertainty. 



The ideas as to morality of civilised countries do not i^rogress pari 

 passu. There are many things which, according to some states of 

 society, justice requires, or morality requires, but which another state 

 of society, which boasts of a proud civilization, declines to recognize. 

 Two instances occur to me; I may refer to them in passing. Take the 

 case of privateering. Privateering, as members of the Tribunal are 

 aware, has again and again been pronounced by writers on inter- 

 national law, and by statesmen, as being the fruitful cover and source 

 of i)iracy — as a foster-brother to piracy and, therefore, a thing to be 

 put down ; and in the memorable Declaration of Paris of 1856, as the 

 Arbitrators will recollect, Prussia, Austria, France, Russia, Sardinia, 

 Turkey and Great Britain, assembled in Congress in Piiris, agreed vSo 

 far as it rested with them, and recorded it in the Treaty there signed, 

 in a condemnation of privateering as against international morals. I 

 think it is true to say that, except the United States of America, in 

 this present day there is no considerable Power in the world that 

 stands out against a condemnation of privateering. Will the United 

 States admit that because all these great Powers concurred that makes 

 international law f No. 



The United States, for reasons of its own which I am not at all con- 

 cerned in discussing now, and which may be right or wrong, was not 

 abreast with the other Nations in that line of thought. Take again 

 another case, the question of the Slave Trade. As far as I know, there 

 is no diiference of opinion among any of the Powers which call them- 

 selves civilised, as to the immorality of, and the true character to be 

 given to, the traffic in human beings. But Nations have differed as to 

 the means which should be adopted for the purpose of endeavouring 

 to put down that inhuman traffic. 



As late as 1848, although the whole voice, I may say broadly, of 

 humanity the world over has condemned the slave trade — and no coun- 

 try has gone farther to make sacrifices in the same direction, to its 

 credit, be it said, than the United States — a Judge of the High Court 

 in Great Britain, in the case of Burou vs. Denman, expressly declared 

 that slavery is not an offence against the Law of Nations, and that 

 ownership in slaves is not forbidden by the law of nations. 



731 There is a curious comment made upon this proposition at page 

 7 of the written argument of the United States. After referring 



to a decision in the same sense in the American Courts, my learned 

 friend Mr. Carter, alluding to Chief Justice Marshall, says — 



The Snpreine Court of the United States, speaking through its greatest Chief 

 Justice, was obliged to declare in a celebrated case that slavery, though contrary to 

 the law of nature, was not contrary to the law of nations; and an English judge, no 

 less illustrious, was obliged to make a like declaration. Perhaps the same question 

 would iu the present more humane time, be otherwise determined- 



