ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 329 



and they unaiiimouslj' asserted that the international hiw in relation to this ques- 

 tion was precisely as it has been just described by my noble and learned friend. 

 Upon that opinion Her Majesty's Government at once acted, and we frankly con- 

 fessed that we liave no legal claim to the right of visit and of search which has 

 hitherto been assumed. Her Majesty's Government therefore abandoned both those 

 claims, hut at the same time they placed before the American (iovernment the para- 

 mount necessity of agreeing upon the adoption of sonu' instructions perfectly identi- 

 cal in character to be jjlaced in tlie hands of the officers of both Governments, and, 

 indeed, in the hands of the officers of all maritime nations, by which all Powers 

 should be ruled, so as for the future to avoid all obstruction to commerce, while at 

 the same time the fraudulent use of national flags may be prevented. 



Lord Aberdeen joined in this discussion, and you will recollect tliat it 

 was Lord Aberdeen, when Minister for Foreign Affairs, who conducted 

 the correspondence in 1841, to which I referred in this connection a few 

 minutes ago. Lord Aberdeen says : 



I was therefore astonished to hear my noble and learned friend (Lord Lyudhurst) 

 quote the statement of the higlily respected American Minister — 



that is Mr. Dallas— 



who is now in this country, to the eflect that we had given up frankly and filially 

 the right of visit and search. 

 Twenty years ago — 



Eeferring back to the period I have mentioned — 



Twenty years ago the Government of that day repudiated the assertion of any such 

 right, and "^there fore what the noble i'^arl the Secretary of State for Foreign Affairs 



can have given up I am at a loss to understand. Any such right was given 

 1114 up then as frankly and finally as it possibly can be given up at this moment. 



After my noble and learned friend's quoting the high authority of Lord Stow- 

 ell, it may appear ludicrous in me to quote myself. At the same time, in order to 

 show how the matter stood twenty years ago, I will just quote a note of my own. 

 Though an humble authority, still I was speaking.the language of the British Gov- 

 ernment, and that language was received by the American Government with acqui- 

 escence and satisfaction. 



Then he gives the passage from his letter which I have read to you 

 already. I will merely read enough of it to remind you what it was. 

 Its words are these: 



The Undersigned resigns all pretensions on the part of the British Government to 

 visit and search American vessels in time of peace ; uor is it as American vessels that 

 such vessels are ever visited. But it has been — 



and so on. 



He then proceeds to repeat at length the letter which I have already 

 read. 



Now it will be convenient, I think, if I deal at once with the corre- 

 spondence which led to this discussion in Parliament; and linvokethat 

 correspondence, not merely because it showsthat there wasnotthe asser- 

 tion as a matter of right at that time, or that if there was at any time 

 such an assertion, it was definitely abandoned. In view of what I have 

 so far read, and still more in view of what I am about to read, I will 

 content myself with expressing my surprise that my learned friend, Mr. 

 Phelps, having, as I cannot but think he had, all this matter under his 

 eye, or at least having the opportunity considering it thoroughly, 

 should have written, as he has written in his Argument, at page 161: 

 "It has been disused but never abandoned". 



The correspondence is correspondence presented to Parliament in 

 1859, and I read from the Parliamentary papers. I will begin by an 

 important despatch from General Cass to Lord Napier. 



General Cass, I believe, was at that time Secretary of State. 



Mr. Justice Harlan. — In what year*? 



Sir Charles Eussell.— 1859. 



