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



Certainly it is, and will still be said, except under Treaty. Then my 

 friend continues: 



That assertion proceeds upon the ground that only in time of war can the necessity 

 for it arise. No one has ever claimed that the right should he denied in time of peace, 

 if an equal necessity for it exists. And when such necessity has heen regarded as 

 existing, the right has heen asserted. Prior to the war of 1812, between the United 

 States "and Great Britain, the latter country claimed the right in time of peace to 

 search American ships on the high seas for British subjects serving as seamen. 

 Though the war grew out of this claim, it was not relinquished by Great Britain when 

 a treaty of peace was made. It has been disused, but never abandoned. 



Kow I stop there for a moment, and I proceed to examine the question. 

 And first I would like to make one general observation upon it. It is 

 quite true that at that time an attempt was made by Great Britain to 

 assert the right to take British seamen from the ships of the United 

 States — perfectly true; audit is perfectly true also that at a later stage 

 it was — I will not say asserted — but assent was sought to be obtained 

 to the right to search vessels — to visit vessels — for the i^urpose of ascer- 

 taining their nationality; that is to say, it was not asserted there was a 

 riglit to visit a United States or French vessel if it was merely a United 

 States or a French vessel flying French or United States colours, the 

 assertion was limited to the case where there was ground to suspect that 

 the flag of France or the flag of the United States was used dishonestly 

 or fraudulently in order to cover illicit trade in slaves. It is perfectly 

 true that those two assertions were made, and now I proceed to show 

 how they were dealt with, and to enquire whether this statement is cor- 

 rect, which my friend has thought right to put here in his Argument, 

 that: "Though the war grew out of this claim, it Avas not relinquished 

 by Great Britain when a Treaty of peace was made. It has been dis- 

 used, but never abandoned". That is the i^roposition that my learned 

 friend x)uts forward. 



Then he proceeds: 



The objection to it on the part of the United States was the obvious one that it 

 was founded upon no just necessity or propriety. Had it been a measure in any 

 reasonable sense necessary to self-defense on the part of Great Britain, its claim 

 would have rested on a very different foundation, and would have been supported 

 by the analogy of all similar cases. The right of search is exercised without ques- 

 tion as against j)rivate vessels suspected of being engaged in the slave trade. 



1108 I beg to say that that is a further inaccuracy, and that I think 

 my friend, if he examines it carefully, will find that that is not 

 correct, and that it is only under Treaty that there is such a right of 

 search. 

 Then he goes on : 



And it is very apparent, that as the increasing exigencies of international inter- 

 course of all kinds render it necessary, the principle that allows it in time of war 

 will be found sufficient to allow it in time of j)eace. 



That is looking into the future. It is not considering what the law- 

 is, but suggesting what, at some future time, it may be. 

 Then he proceeds: 



The rule, as has been seen, grows out of necessity alone, and must therefore extend 

 with the necessity. 



And thereupon he proceeds to refer to the correspondence of Lord 

 Aberdeen. 



I shall now bring this matter (beginning with the correspondence that 

 is there referred to, from 1840 until the last occasion when the subject 

 was referred to, as fiir as I am aware, in public — in Parliament), down 

 to the year 1858, but I need not do that at any very great length. 



