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



Sir Charles Eussell. — Then he says at page 618 : 



It is nndonbtedly true, that this right may he ahtised, like every other which is 

 delegated to many and different hands. It is possible that it may be exercised 

 wantonly and vexationsly; and should this be the case, it would not only call for 

 remonstrance, but would justify resentment. This, however, isiu the highest degree 

 improbable; and if, in vspite of the utmost caution, au error should be conimitted, 

 and any American vessel should suffer loss or in. jury , it would be followed by })roiiipt 

 and aniple reparation. The Undersigned begs to repeat, that with American vessels, 

 whatever be their destination, British cruizers have no pretension in any manner to 

 interfere. Such vessels must be permitted, if engaged in it, to enjoy a monopoly of 

 this unhallowed Trade; but the British Government will never endure that the 

 fraudulent use of the American flag shall extend the iui(iuity to other nations by 

 whom it is abhorred, and who have entered into solemn Treaties with this country 

 for its entire suppression. 



1110 I will now read the last paragraph of the letter : 



Mr. Stevenson has said that he had no wish to exempt the fraudulent use of 

 the American flag from detention; and this being the case the Undersigned is 

 unwilling to believe that a government like that of the United States, professing 

 the same object and animated by the same motives as Great Britain should seriously 

 oppose themsehes to every possible mode by which their own desire could be really 

 accomplished. 



I think I am justified, Mr. President, in saying that although the 

 word "right-' is used there, it is used in a sense in which even by 

 writers upon law it is sometimes used ; he uses it to indicate something 

 claimed which ought to be allowed, ought to be assented to, by the 

 other Power. He points out that it is not the right of search that he 

 is insisting on, but the right to use means to ascertain whether or not 

 a vessel is" fraudulently flying a false flag. This right was resisted by 

 the United States it was resisted, too, by France. That he was speak- 

 ing of the right in that vaguer or lesser sense of the term, and not of 

 something which he could do under the force of some existing law, is 

 made apparent by the fact that he states that if, the circumstances 

 being sufficiently suspicious to justify visitation, it turns out upon 

 visitation that that suspicion is not warranted, then reparation is to be 

 made to the vessel so visited; whereas, of course, if it were an absolute 

 right, enforceable against the will of particular nations, you would not 

 find it accompanied by such a provision for reiiaratiou. 



The matter came up again in 1858; and it came up in a way that, if 

 anything can be made interesting in this matter, will make it more or 

 less intei-esting to the Tribunal. It came up in the House of Lords on 

 the 2Gth of July 1858, and some very eminent jurists took part in the 

 discussion; and Lord Lyndhurst, whose position is known, I should 

 think, to all members of the Tribunal — at one time Chief Baron of the 

 Exchequer, afterwards Lord Chancellor, and besides, an important 

 political personage — rises to put a question, of which he had given 

 notice to the Secretary of State for Foreign Affairs. America, I think, 

 has the right to claim him as one amongst many of her distinguished 

 sons. Lord Malmesbury was the Foreign Secretary. Lord Lyndhurst 

 said: 



Your Lordships, no doubt, have most of you read a speech which was made by 

 Mr. Dallas, the American Minister, a short time since, at a meeting of his fellow- 

 subjects, to celebrate the anniversary of American Independence. On that occasion 

 thehonourahle gentleman stated that the question of the right of visiting American 

 vessels in time of peace on the high seas had been finally settled. This is a subject, 

 my Lords, of so much importance and such deep interest that it is material that we 

 should receive a distinct and precise account of the terms on which that settlement 

 is based; and I have therefore given notice of a question which I intend to propo.se 

 to my noljle the Secretary of State Foreign Affairs, in order that he may give us 

 some explanation on the subject to which I have referred. Many persons — perhaps I 



