ORAL AEGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 331 



she has assumed, then the foreign man-of-war may have recourse to a verification of 

 the nationality assumed. With this object a boat shall be sent to the suspected 



1116 vessel which shall have been previously hailed to anuonuce the intended visit. 

 The verification shall consist of the examination of the papers proving the 



nationality of the vessel. 



These were the proposals whicli resulted iu the Treaty of 1862 upon 

 the subject. 



Lord Hannbn. — From whom did these proposals emanate? 



Sir Charles Eussell. — Origiually from Lord Maliuesbury, I think. 

 It was a communication by Lord Malmesbury, the Foreign secretary, 

 to Lord Isra])ier the British Minister at Washington. This was Lord 

 Malmesbnry's proposal as to the identical instructions to be given to 

 the cruisers of these nations. 



He says : 



The exhibition of these documents is all that can be desired. All enquiry into the 

 nature of the cargo, commercial operations, or, in a word, on any other point but that 

 of nationality, all search or visit of any kind, are absolutely forbidden. The ofificer 

 entrusted with the verification ought to conduct his proceedings with great discre- 

 tion and with all courtesy, and leave the vessel as soon as the verification has been 

 effected, offering to enter in the ship's papers the fact and circumstances of the 

 verification, and the motives which determined him to resort to it. 



Except in the case of legitimate suspicion of fraud, it ought never otherwise to be 

 necessary for the commander of a man-of-war to go or to send on board a merchant- 

 vessel, so numerous are the signs which, putting colours out of the cxuestion, reveal 

 to the eye of a seaman the nationality of a vessel. 



Then follows this important provision : 



In every case it is clearly understood that the man-of-war that decides on board- 

 ing a foreign merchant-vessel does it at her own risk and peril, and remains respon- 

 sible for all the consequences which may be the result of her act. 



The commander of the foreign ship of war who shall have had recourse to this 

 measure ought, in all cases, to make it the subject of a report to his Government, 

 and should explain the reasons of his having so acted. This report, and the reasons 

 which led to the verification, shall be communicated officially to the Government to 

 which the vessel whose colours have been verified shall belong. 



Whenever the examination shall not be justified by evident reasons, or shall not 

 have been conducted in a suitable manner, a claim may arise for indemnity. 



There then is a communication of a similar kind to the Government 

 of France; and on page 59 there is a communication to Lord Malmes- 

 bury by the Duke of Malakoff; and annexed was a draft of instructions 

 proposed to be issued to the Commanders of French ships of war, which 

 are, (though I have not compared them word for word), practically 

 identical with, what I have read. I will read sufficient to justify that 

 statement. They begin: 



INSTRUCTIONS TROPOSED TO BE ISSUED TO COMMANDERS OF FRENCH SHIPS OF WAR. 



In consequence of the lapse of the Treaty with Great Britain for the suppression 

 of the Slave Trade, the French and British Governments have felt the necessity of 

 coming to some provisional arrangement with respect to the visit of merchant-vessels 

 suspected of fraudulently assuming the British flag. 



1117 The counterpart of that was " suspected of assuming; fraudu- 

 lently the French flag", and it begins: 



Protected by the independence of her national flag, a merchant- vessel navigating 

 the high seas is subject to no foreign jurisdiction, unless by virtue of any Treaty. 

 A man-of-war can therefore only visit, detain, arrest, and seize tbose merchant-ves- 

 sels which she recognises as being of the same nationality as herself. 



And it proceeds to point in the same way to the flag being a prima 

 facie indication, if there is no ground to suspect its honesty, of the 

 nationality of the vessel. 



