ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 305 



The President. — The last line is by Mr. Phelps, but I believe the 

 two preceding lines are not. 



1085 Mr. Phelps. — Mr. Wharton's proposition is the first one, begin- 

 ning, 



Intrnsiou on the territory or territorial waters of a foreign state, eto. 



Sir Charles Eussell. — Then Mr. Phelps, I think, agrees that these 

 words are his. 



A belligerent may, under extreme necessity, enter neutral territory and do what 

 is actually necessary for protection. 



Mr. Justice Harlan. — Is that yours, Mr. Phelps, or Mr. Wharton's"? 



Mr. Phelps. — Mr. Wharton's. 



Sir Charles Eussell. — Are you quite sure, Mr. Phelps I 



Mr. Phelps. — I am quite sure. 



Sir Charles Eussell. — It is enough then to say I have not the 

 weight of the authority of my friend Mr. Phelps; I have only the 

 authority of Mr. Wharton, and he treats it as a belligerent act. I am 

 sorry I have not both; but I shall be content with one. 



But whether war was formally declared or informally declared, the 

 acts were in the nature of belligerent acts, directed to putting down 

 the persons who were assuming, without authority, jurisdiction, and 

 who were committing acts, as I have said, of land i)iracy. That is 

 practically all that one can say of it. 



The next case cited is the case of the Caroline, on page 153. That 

 was a case where there was, or had recently been, an actual rebellion 

 in Canada. What happened was this : It appears firom the correspond- 

 ence which I shall presently refer to, that this vessel, the Caroline, 

 was armed by a number of persons acting in sympathy with the rebel- 

 lion. These persons got the vessel to the river which connects Lake 

 Erie witL Lake Ontario. 



The flow oi the water is from Lake Erie into Lake Ontario, and Lake 

 Erie divides Canadian from United States territory. They got this 

 vessel, intending to use it as an offensive weapon against Canada, into 

 the rivei which unites Lake Erie with Lake Ontario, and they got to 

 the side of the river next to American territory. In that condition of 

 things the Canadian authorities sent down an armed force, took pos- 

 session of the vessel, and being unable to take her away, they destroyed 

 her as being an engine of offence directed against her. My friend Mr. 

 Box has been good enough to give me a short note which he has 

 extracted from a parliamentary paper which I have here, and which I 

 have read, but the note gives the facts. The case of the United States 

 is set out in a despatch from Mr. Stevenson to Lord Palmerston, dated 

 the 22nd of May 1838. 



According to this despatch, there was an insurrection in Canada. 

 The Caroline was an unoffending United States vessel. She was seized 

 in a United States port, set on fire, and sent over the falls of Niagara. 



That is the statement of Mr. Stevenson. 



The British case, on the other hand, is set out in a despatch from 

 Lord Palmerston to Mr. Stevenson, dated the 22ud of August, 



1086 1841. According to Lord Palmerston's account of the facts, a 

 small band of Canadian refugees, who had taken shelter in the 



state of New York, formed a league with United States citizens for the 

 purpose of invading British territory, not to aid in the civil war, which 

 did not exist, as Lord Palmerston contended, but to commit in British 

 territory robbery, arson and murder. At the United States port of 

 Schlosser, with the connivance of the authorities there, the Caroline 

 B S, PT XIII 20 



