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



I have been drawn a little away, Mr. President, from the point which 

 I was upon, although I think what I have said is still quite necessary 

 to the line of the argument which I am pursuing. 



1 have already referred, Mr. President, to this question of the Hover- 

 ing Acts, and 1 do not intend to repeat myself upon them except to 

 make this comment: that — although many Powers have adopted Acts 

 which may be called Hovering Acts, and although other States, espe- 

 cially those that have similar Acts, have recognized, have not 

 1079 complained of, have acquiesced in, acts done outside the terri- 

 torial limits in defence of trade or revenue, acts done by other 

 Powers under those Acts even where they involve the seizure of their 

 own ships and subjects — yet I think it would be too much to say, even 

 at the present day, that the principle of the Hovering Acts can prop- 

 erly yet be said to be part of international law: it really does rest now 

 upon that principle of acquiescence which I have mentioned, and that 

 acquiescence in its turn rests upon the princijile that a nation will not 

 interfere to throw the mantle of its protection over one of its nationals 

 when that national has, for his own private ends, been running counter 

 to a just and reasonable law of a friendly Power. 



And I observe that that is the way in which these Hovering Acts are 

 treated by text writers of authority. I refer to Dana's edition of 

 Wheaton, the 8th edition published in 1866, and especially to the note 

 108, following upon the beginning of section 180; but I will not read 

 the passage for the moment. 



Now I will still pursue the question raised, as to certain things which 

 are done with permission and acquiescence, whether or not they may be 

 said to be strictly conformable to international law. 



Take again the pursuit of vessels out of the territorial waters, but 

 which have committed an oiience against municipal law within terri- 

 torial waters — which is a case which my learned friend and myself (and 

 I have no doubt my learned friends on the other side), have had fre- 

 quent occasion to consider. Here, again, there is a general consejit on 

 the part of nations to the action of a State pursuing a vessel under such 

 circumstances, out of its territorial waters and on to the high sea. 



Senator Morgan. — You mean a consent by acquiescence? 



Sir Charles Eussell. — A consent by acquiescence. 



The President. — And not in every case? 



Sir Charles E-ussell. — No, certainly not in every case. I will 

 state — although not perhaps exhaustively — some of the leading condi- 

 tions. For instaiKje, one condition is it must be a hot pursuit — that is 

 to say, a nation cannot lie by for days or weeks and then say: ''You, 

 weeks ago, committed an ofl'ence witliin the waters, we will follow you 

 for miles, or hundreds of miles, and pursue you". As to that, it must 

 be a hot pursuit, it must be immediate, and it must be within limits of 

 moderation. In other words, we are still considering the character of 

 the act which is not defined by International law, ivhich is not a strict 

 right hy Tnternational law, but tohich is something lohich nations icill stand 

 hy and see done, and not interpose if they think that the particular person 

 has been endeavouring to commit a fraud against the laivs of a friendly 

 Power. 



Senator Morgan, — That relates to the morality of the act. 



Sir Charles Kussell. — To some extent, undoubtedly. The par- 

 ticular nation would undoubtedly be guided in its acquiescence or non- 

 acquiescence according to its view of the morality or immorality of the 

 particular conduct pursued — according to its view of the justice or injus- 

 tice, reasonableness or unreasonableness, of the particular law. 



