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



take from the sea what tliey can j?et from the sea, tliat iiiteniatioiial 

 Liw has engrafted upon that general principle an exception wliicb 

 excludes fur-seals or any similar creature from that generally admitted 

 right? 



Surely I am right in affirming that one or both of those propositions 

 must be established by my learned friend. Has he made an attempt 

 to support either of them by reference to international law? I submit 

 he has not; and here again I must recur to what 1 think must be from 

 time to time, if I may say it with respect, borne i.i mind by tlie Tribunal 

 as to what international law really is. I have already endeavoured to 

 explain that nothing can be considered international law as to which 

 it cannot affirmatively be shown that the consent of civilized nations 

 has been given ; and that nothing short of an affirmative answer to the 

 question pJacnitne gcntibits, applied to any projiosition, will satisfy the 

 test of what international law is. My learned friend says international 

 law, moral law, natural law, are all ])ractically interchangeable words, 

 meaning the same thing. I would like to examine this briefly for a 

 moment or two. 



It is quite true that there are some writers of distinction who refer 

 to natural law as the basis and .source of international law, and whose 

 language would seem to show that they regarded natural law as the 

 same thing. Pufl'endorf is the most prominent amongst these; but 

 such writers as Bynkershoek and VYolfe have an entirely different view. 

 Heff'ter, with whom I have no doubt the President is entirely familiar, 

 speaks of international law as founded on necessity developed by morals. 



Calvo recognizes the idea of general justice as modifying for the com- 

 mon good the relations of States; but he himself prefers to rest inter- 

 national law upon the principles defined by various Treaties, and rules, 

 natural and logical, to be deduced from many ingredients in 

 1039 many cases, carried into practice and generally recognized; he 

 finally sums it up in the i)hrase "la jurisprudence consacr^ par 

 la coutume." 



There are two very acute criticisms upon this subject to which I should 

 like to draw the attention of the Tribunal. One is the criticism of Ben- 

 tham, cited, and cited with approval, by Ortolan in his " La Diplomatie 

 de la Mer". I am citing from the second edition of 1853. He cites a 

 passage from Bentham of a very incisive character, as nearly all of Ben- 

 tham's were, in which he is speaking of natural law, and natural right 

 as springing from natural law. He says: 



Natural right is often employed in a sense opposed to law, as when it is said, for 

 example, that law cannot be opposed to natural right, the word "right " is employed 

 in a sense superior to law: a right is recognized which attacks law, npsets, and 

 annuls it. In this sense which is antagonistic to law, the word " droit " is the great- 

 est enemy of reason, and the most teriible destroyer of governments. We cannot 

 reason with fanatics armed with a natural right, which each one understands as he 

 pleases, applies it as it suits him, of which he will yield nothing, withdraw nothing, 

 Avhich is inflexible at the same time that it is unintelligible, which is consecrated in 

 his eyes like a dogma, and which he cannot discard without a cry. Instead of exam- 

 ining laws by their results, instead of judging them to be good or bad, they consider 

 them with regard to their relation to this so called natural right. That is to say they 

 substitute for the reason of experience all the chimeras of their own imagination. 



Another critic, a very able and acute one, Austin, speaks to the same 

 effect. I am now reading from a book which has certainly had enormous 

 influence on the mind of England, and the value of which I think has 

 been almost universally recognized. I mean his "Province of Jurisdic- 

 tion Determined " : at volume I page 222, he says : 



Grotius, Pufiendorf and other writers on the so-called law of nations have fallen 

 into a similar confusion of ideas. 



