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



not true to say that opinion, which is matured upon a particular point 

 touching morals in one nation, is in a state of tiux and uncertainty in 

 an(,ther nation, even upon points where there is a general consensus in 

 reprobating a particular course of conduct'? I gave an illustration the 

 other day — and what other illustration can be stronger — the slave trade; 

 yet it cannot be affirmed that the slave trade is yet relegated by inter- 

 national law to the same category as piracy, or carries with it the same 

 sanction. Or, again, take the illustration which the argument of my 

 learned friends here supplies. According to their contention, it ivS — and 

 the United States have made it, as far as municipal law can make 

 1041 it, — a crime against the law of nature or of morality, or of both, 

 to kill a female seal. Is that a rule of morality which prevails the 

 world over? Have nations agreed in regarding this as a crime? Has 

 international law or a congress of international statesmen ever suggested 

 that to kill a female of any species of animals, wild or domestic, aye, or 

 even a gravid female — very reprehensible and regrettable, it may be — 

 was to be regarded as an international crime? 



I have said before that there are certain great principles of morals 

 which have been used to test the relative value of conflicting usages or 

 tendencies of opinion or doctrine, to give formal exi)ression to growing 

 custom, to support fresh theories placed before the world for considera- 

 tion and accei)tance; but no attempt can be made to directly impose 

 such principles upon States as a direct obligation until the consensus 

 of nations has first assimilated them as part of the international law. 



If I am right in this — and I submit that I am — the conclusion is that 

 it is not a question of presuming assent to ideas of international law, 

 or morality, or anything else, as to which civilized nations, just as 

 civilized men, take different, diverging views; but that to constitute 

 international law, assent has to be aftirnuitively shown. 



Finallj^, in this connection, I have to submit that modern interna- 

 tional law has long passed the stage at which an appeal to any vague 

 general principles can aftord any safe, certain resting place or guide 

 at all. It is now, and it has long been, a body of derivative prin- 

 ciples and concrete rules, formed by the action and re-action of each 

 other, of custom, moral feeling, considerations of convenience. It is 

 only capable of modification and extension either by the slow growth 

 of fresh customs, under the influence of these other factors, morals and 

 convenience, or by general express agreement amongst nations, — mat- 

 ters involving new principles or new rules, or fresh, unrecognized prac- 

 tices. No speedy way exists of changing the concrete rules of existing 

 law otherwise than by the general agreement of civilized States; and 

 to nothing else than these concrete rules is obedience due. 



I concede that these concrete rules do not cover all cases. Probably 

 the law never will be found to cover all possible cases; but the law is 

 supplemented by treaty, by agreement between particular States; ahd 

 you are in this instance, in discharge of the imiwrtant functions which 

 you have assumed, standing in the place of these parties, in connection 

 with the branch of the question which I have not yet approached. 

 But now you are to declare as regards the branch with which I am deal- 

 ing, what are the rights, legal rights, according to existing law, of the 

 parties, not looking beyond that law, until you come to the second 

 branch of the question ; then indeed you are to say tor the parties what 

 they would have said for themselves had they entered into an agreement 

 to settle the difterences existing between them. 



Senator Mohgan. — Is it to be determined according to existing inter- 

 national law, or existing municix)al law, or both? 



