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



"All nations being equal, all have an equal right to the uninterrupted use of the 

 unappropriated parts of the ocean for their navigation. In places where no local 

 authority exists, where the subjects of all States meet on a footing of entire equality 

 and independence, no one State or any of its subjects has a right to assume or exer- 

 cise authority over the subjects of another." 



That is a confirmation of the doctrine which I have stated, that the principle ou 

 which this question is to be decided, is the equality of all nations on the high seas. 

 Admitting this principle, how can it be asserted that the ships of one nation can 

 interfere in any way with the vessels of another? Then, having laid down this 

 principle, the consideration next occurs that difficulties may arise out of frauds 

 which may be practised on the high seas ; and it is said that the flag of America may 

 be assumed by another Power to cover the basest of purposes. Hut how can the act 

 of a third Power, or of the subjects of a third Power, by possibility affect any right 

 existing on the part of the United States? Take this case: By our Treaty with 

 Spain, we have a right to visit and search Spanish vessels with a view to prevent the 

 Slave Trade. But, how can that agreement between us and Spain, by any possibil- 

 ity, affect the rights of America? Clearly in no way at all. But, then, what are 

 our cruizers to do? 



He refers a little later to a discussion that took place after the Treaty 

 of Vienna in 1815. I read a little further down in the same speech. 

 He says : 



Treaties have been entered into between England and foreign countries, giving 

 the right of visit. But why enter into such treaties, if the right of visiting is a 

 national right, founded on international law ? What took place in the year 1815 after 

 the Treaty of Vienna? Lord Castlereagh applied to the French Government to estab- 

 lish some mutual system by which cruizers could visit the vessels of either country: 

 but the Due de Richelieu replied that France would never consent to a maritime 

 police being established over her own subjects, except by persons belonging to her 

 own country. I think I have now gone far enough to establish the position with 

 which I started, etc. 



Then Lord Malmesbury,in reply, indorses categorically and distinctly 

 the opinion of Lord LyndLurst. 



The Tribunal here adjourned for a short time. 



The President. — Sir Charles, we are ready to hear you. 



Sir Charles Russell. — I was about to read the reply of Lord 

 Malmesbury, who was then the Foreiftn Secretary. I will only read 

 the part which shows his agreement with the statement of the law as 

 made by Lord Lyndhurst. He says : 



It is with great pleasure that we have heard the views of my noble and 

 1113 learned friend on this important subject, because they conform precisely to 

 the opinion of the Law Officers, of the Crown, whom we thought it our duty 

 to consult — 



Lord Hannen may recall that the law officers of the Crown at that 

 time were Sir Fitzroy Kelly, and Sir Hugh Cairns. Lord Malmesbury 

 says : 



because they conform precisely to the opinion of the Law Officers of the Crown, 

 whom Ave thought it our duty to consult before we sent answer to the communica- 

 tions we received from the American Government. 



I may say of the then Attorney General, Sir Fitzroy Kelly, that he 

 was afterwards Chief Baron of the Court of Exchequer, and Sir Hugh 

 Cairns, afterwards Lord Cairns, was first of all a Lord Justice of 

 Appeal, and afterwards Lord Chancellor, and a lawyer of Great emi- 

 nence. 



Then Lord Malmesbury proceeds: 



When we received General Cass's comnnmication — 



Which I shall presently read to you as showing the views of the 

 United States upon the question of law. 



When we received General Cass's communication, which was addressed to Her 

 Majesty's Government, we immediately consulted the Law Officers of the Crown, 



