OKAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 301 



1080 I am of course here endeavouring to show that tliese various 

 cases, quite dissimihir in their character, but all grouped together 



by my learned friend, are explicable upon different reasons. Some of 

 the instances in the later cases which he gives, to which I am going to 

 refer, are cases that fall within an entirely different category. They 

 are acts either quasi-belligerent or actually belligerent, and fall within 

 no rule of international law at all; they are acts which the nation does 

 at its peril, taking the risk of having to defend them by force if they 

 are challenged. They do not fall within any (what I may call) peace 

 principle of international law. 



Then again, take the case of sudden emergency, where there is some- 

 thing that may properly be considered as requiring instant action; as, 

 for instance, those which are given by Azuni, where to avoid a greater 

 danger, for example, the spread of fire, you may even destroy the prop- 

 erty of another under the urgent necessity of the moment, where there 

 is no time for precautionary measures, and the spread of the fire must 

 be prevented : there you may act on the instant though by your act you 

 destroy the property or invade the right of another. The case rests 

 upon an entirely different principle. 



But as regards those cases, as Mr. Webster, the American Minister, 

 said in the case to which I shall presently refer, what a Government in 

 such a case has to do in defending or excusing an act which is an inva- 

 sion of the rights of another sovereign Power, is to "show a necessity 

 of self-defence, instant, overwhelming, leaving no choice of means and 

 no moment for deliberation." 



That is the language of one of the most distinguished of the Ministers 

 of the great American community. 



Now in time of peace it will be found that the liberty conceded by 

 consent of nations to maritime Powers as to exceptional acts of self- 

 preservation is very closely restricted indeed; and here the simple 

 inquiry is, how far can it be shown that civilized States have agreed to 

 the exercise of a jurisdiction on the high seas under-the plea of self- 

 defence or self-preservation. 



And I submit that it has never been suggested, still less agreed to 

 by nations, that a particular Power may judge for itself of the incon- 

 venience it is suffering from the action of another Power on the high 

 seas, and put down that action with a high hand. Any such general 

 proposition is unsound. It may do it; but if it does it it does it as an 

 act which it must defend by force if challenged; it is not In the exercise 

 of a legal right. It is a resort to the early sanction of force, and must 

 be justified, if it be necessary, by force. And the restricted proposition 

 which we state, and by which we stand, is, that in such a case as the 

 present, where there was no such instant overwhelming necessity of 

 self-defence, where there tvas time for device of means, where there ivas 

 time for deliberation, where there teas time for diplomatic expostula- 

 tion and representation, that it is idle to try to treat this case as 



1081 a case of necessary self-defence or self-preservation. For be it 

 recollected that beyond the fact of the legislation, which was pro- 

 fessedly a territorial legislation, and a territorial legislation only: and 

 beyond the fact of the seizures, which were made upon the basis of the 

 assertion of that territorial legislation, there was, before these seizures 

 began, no representation made to Great Britain by the United States 

 that she regarded this as a matter of national interest by which, right 

 or wrong, tliey were determined to stand. And up to the present time 

 even there has been no such representation. 



