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



Mr. Justice Harlan. — He was. 



Sir Charles Kussell. — It is rather long, but it is important, not 

 merely for its value as au expression of the views of tlie United States 

 Government, but for the authority wliieli it cites u])on the general 

 question of the right of search. On page 5 of this correspondence, he 

 cites an opinion of Lord Stowell in the decision of a case of a French 

 vessel seized upon the coast of AlVica: "No nation can exercise a right 

 of visitation and search upon the common and unappropriated parts of 

 the ocean except upon the belligereut claim". That is, of course, the 

 contention that I have for so long been maintaining, that this right of 

 search is a belligerent right and does not exist in time of peace. He 

 then proceeds : 



1115 No nation has the right to force its way to the liberation of Africa by tram- 

 pling on the independence of other States, on the pretence of an eminent 

 good, l)y means that are unhiwfiil, or to press forward to a great principle by break- 

 ing throngli other great principles whicli stand in the way. 



Then on page 6 is this emphatic statement: 



The United States deny the right of the crnisers of any other power whatever for 

 any purpose whatever to enter their vessels by force in time of peace. No snch right 

 is recognized by the law of nations. As Lord Stowell truly said: '•! can tind no 

 authority that gives the right of interruption to the navigation of States upon the 

 high seas, except that whicli the right of war gives to belligerents against neutrals. 

 No nation can exercise a right of visitation and search upon the common and 

 unappropriated parts of the Ocean except upon the belligerent claim". 



At page 7 he says something which may have a very distinct appli- 

 cation to this case: 



It is one thing to do a deed avowedly illegal, and excuse it by the attendant cir- 

 cumstances : and it is another and quite a dih'erent tiling to claim a right of action, 

 and the right also of determining when, and how, and to what extent, it shall be 

 exercised. And this is no barren distinction so far as the interest of this country is 

 involved, but it is closely connected with an object dear to American people — the 

 freedom of their citizens upon the great highway of the world. 



So much for General Cass's view. Communications were then opened 

 with other European Powers, with France and Germany among others, 

 and proposals made for the concession of mutual rights by convention, 

 which some of those Powers agreed to in 1862, On page 38 of this 

 Parliamentary paper the suggestion is made, which I thiuk emanated 

 in the lirst instance from Lord Malmesbary, as a basis of such a 

 Convention. 



In virtue of the principle of the immunity of national ilags, every merchant vessel 

 navigating the high seas is exempt from all foreign jurisdiction. A ship of war can 

 therefore only visit, detain, arrest and seize those merchant-vessels which she recog- 

 nizes as being of the same nationality as herself. 



Then he proceeds: 



The flag he'ing prima facie the distinctive sign of the nationality of a vessel, and 

 consequently the proof of the jurisdiction to which she is subject, it is natrral that 

 a merchant vessel on finding herself on the high seas in the presence of a man-of-war 

 should hoist her flag to attest her nationality : so soon as the man-of-war has made 

 herself known by hoisting her colours, the mercliaut vessel ought likewise to hoist 

 hers. If she refuses to hoist her flag it is agreed that she may be summoned to do 

 so, first, by a blank gun, and if that remains without effect, by a second gun shotted, 

 but pointed so as not to strike her. As soon as the merchant vessel by hoisting her 

 flag has established her nationality, the foreign man-of-war can claim no authority 

 over her. The utmost which the latter may do is, in certain cases, to claim the right 

 of spealiing witli her; that is to say, to ask her to reply to questions addressed to 

 her through a speakiug trumpet, but without interfering with her course. When, 

 however, tiie presuinittion of nationality resulting from the colours hoisted by a 

 merchant vessel is rendered seriously doubtful by information or by signs of a nature 

 to encourage the belief that the vessel does not belong to the nation whose colours 



