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



2^0. sir, it would not. It could not, until nations liave given tlieir 

 couvsent to its being- treated as a crime against international law. These 

 distinguished Judges, Chief Justice Marshall, in one case, and Baron 

 Parke in the other, were not the mal-ers of international law: they were 

 but the interpreters of international law; and a Court such as this, or 

 any Court of Judicature more permanent in its character, could do no 

 more than they did, because there is not the necessary consensus of 

 nations stamping with its imprimatur the traffic in slaves as an oflence 

 and crime against international law. 



Now, this brings out, as it seems to me, in very clear relief the qualifi- 

 cations that are absolutely necessarj^ to be introduced into this much too 

 wide and, therefore, unsound general jH'oposition of my learned friend; 

 and I would like at this stage to show a little more amply, in opposition 

 to it, what our case is on this point. The questions liere to be decided 

 must, at each stage of the discussion, be brought into juxtaposition with 

 a clear, definite conception of what the law of nations is. I refer the 

 Court to the Judgment of the Lord Chief Justice of England, Chief Jus- 

 tice Coleridge, in a comparatively recent case, known by the name of 

 the "Franconia case". 



(It is reported in the 2nd Vol. of the Exchequer Division of the English 

 Law Eeports, under the name of the Queen v. Keyn. I have the report 

 within reach, and it is at the disposition of any Member of the Tribunal 

 who may desire to read it.) He there says, as was in fact said with 

 certain variations of language by all, or nearly all, the thirteen judges 

 who took part in that judgment, that international law is nothing more 

 nor less than the collection of usages which the civilized states have 

 agreed to observe in their relations with one another. The law of 

 nations iiicoi])orates many principles of ethics and of natural law; but 

 only such as it is agreed shall be incorporated form part of that law. 

 The phrase of Gvotms, placuit ne gentibus, sums up the only" possible 

 and the only true idea of the law of nations; and when text- writers and 

 theorists and diplomatists assert that such and such a usage is recog- 

 nized by the law of nations, that such and such a usage is opposed to 

 the law of nations, that such and such a right exists under the law of 

 nations, in each case the criterion is not whether the rule so expressed, 

 or the usage or the right so asserted, is humane, or is just, or is 

 732 moral, the sole question is whether it has received the assent and 

 consent of civilized nations: placuitne gentihusf 



Now, side by side with this coDcejitiou of the law of nations, there is 

 going on in the world a gradual change and a gradual growth of opinion. 

 Nations are changing their customs, acted upon by external circum- 

 stances of their time, influenced by writers and thinkers, who in their 

 turn are influenced by the circumstances of their time; and so there is 

 a gradual formation of a body of opinion which helps to form in the 

 future, aids and stimulates in the future, the recognition by this or by 

 that extension of some principle which may afterwards be brought 

 within the area of international law. There may be opinions, or doc- 

 trines, or usages, which perhai)s are making their way in the world, are 

 perhaps appealing more or less successfully to the sympathy of thinkers 

 in the world, which are not yet part of the Law of Nations, because 

 nations have not consented to them. They are not the Law of Nations, 

 but only the material out of which, it maybe, at some future time some 

 new principleof the Lawof Nations may be developed as the world thinks 

 wise; and I point to this for the reason that my learned friend in the 

 citations from international writers that he has made, and in a much 

 larger number which are given but to which he did not refer, did not 



