ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 327 



onglit not to say "many persons", but several persons, and those in a hish political 



position — ajipear to think that that proceeding was not justified, and that in point 



of fact we have surrendered a most valuable and important right. The 



1111 answer which I make to that is, that we have suiTeudered no right, for that, 

 in point of fact, no right such as that which is contended for ha« ever existed. 



We have, my Lords, abandoned the assumption of a riglit, and in doing so we have, 

 I think, acted justly, prudently and wisely. Now, my Lords, with your permission, 

 I shall proceed to make a few observations upon the general question, and lo refer 

 to some of the most eminent authorities on the suliject; but I assure you that I 

 should not have troubled you were it not that 1 think it is of great importance that 

 this question should be distinctly and fiually understood and settled. The hrst 

 proposition which I state is this: That in no writer on international law has that 

 right ever been asserted; and, in the next place, that there is no decision of any 

 Court of Justice having jurisdiction to decide such questions in which that right 

 has been admitted. I wish, in making this assertion, to fortify myself by some 

 authorities; and I cannot quote a higher or a better English authority than that of 

 Lord Stowell, who states distinctly, in the words which 1 am about to read — in con- 

 formity with what I have stated — that no such right has ever been asserted by any 

 competent authority. His words are these: 



"I can find no authority that gives the right of interruption to the navigation of 

 States in amity npon the high seas excepting that which the rights of war give to 

 both belligerents against neutrals." 



At present I am dealing with tlie assertion that this was a right claimed 

 and exercised, or claimed to be exercised, by Great Britain, and not 

 abandoned. But of course the Tribunal will see that this is a valuable 

 authority, which I need not have to go back upon again, upon what the 

 law itself is. 



That is a distinct statement made by that noble and learned Lord. In addition, 

 I beg leave to refer to Wiicatou, the eminent American authority on International 

 law, who states the proposition in these terms: 



"It is impossible to show a single passage in any institutional writer on public 

 law, or the judgment of any Court by which that law is administered, which will 

 justify the exercise of such a right on the high seas in time of peace independent of 

 special compact." 



So that your Lordships perceive that both on this side of the water and in Amer- 

 ica, by the best authorities and by the highest jurists, that right, in the passages to 

 which I have referred, is controverted instead of being admitted. It has been agi- 

 tated long between this country on the one side and America on the other. The 

 eminent jurist on the other side of the water makes his statement and assertion ; our 

 corresponding authority an this side of the water makes his assertion ; and those 

 assertions directly and distinctly agree. For myself, my Lords, I have never been 

 able to discover any principle of law or reason on which that right could be sup- 

 ported. I will refer again to the same high English authority — Lord Stowell — upon 

 this sirbject, and you shall hear what he emphatically states with respect to it. 

 That distinguished jurist says: 



"No nation can exercise the right of visitation and search on the high seas except on 

 the belligerent claim. No such right has ever been claimed, nor can it be exercised, 

 without the oppression of interrupting and harassing the real and lawful naviga- 

 tion of other countries, for the right, when it exists at all, is universal, and will 

 extend to all countries. If I were to press the consideration further, it would be by 

 stating the gigantic mischiefs which such a claim is likely to produce." 



I may add that another very high authority — the American Judge Story — in the 

 well-known case of the "Marianna Flora", expressed the same opinion in almost the 

 same terms, and in language as emphatic. So here again is a coincidence of author- 

 ity between the two parties agitating the question — the authority on this side of 

 the water corresponding exactly with the authority on the other. But I do not 

 think it necessary to refer to any cases in support of the cases I am consider- 



1112 ing; I will refer only to the principle on which the question rests. What is 

 the rule with respect to the high seas and the navigation of the high seas? 



All nations are equal on the high seas. Whether they be strong and powerful, or 

 weak and imbecile, all are on a footing of perfect equality. What is the position of 

 a merchant ship on the high seas? A ship is part of the dominion to which she 

 belongs, and what riglit has the ship of one nation to interfere with the ship of any 

 other nation, where the rights of both parties are equal? The principle is so clear 

 and so distinct that it will not admit of the smallest doubt. I am unwilling on a 

 question of this kind to refer to any arguments of my own, or to any authority which 

 I can possess on the subject; but hear what is said by Lord Stowell with respect to 

 the navigation of the high seas. His language is this : 



