332 ORAL ARGUMENT OF STR CHARLES RUSSELL, Q. C. M. P. 



Then it proceeds to say that, if it cau be seriously called in qnestiou 

 that it is fraudulently assumed, the proceedings mentioned may be 

 taken 5 and iinally, in clause 10: 



In every suppositiou 



that means in every supposed case, 



it is thoroughly understood that the captain of a man-of-war who decides upon board- 

 ing or sending on board a merchant- vessel, always docs it at his own risk and peril, 

 and remains responsible for all the consequences of his act. 



If the captain is mistaken, if he finds that the vessel is honestly bear- 

 ing the flag to which she is entitled, then the nation to which the cruiser 

 belongs must pay if the vessel has been damnified. 



The President. — Is not that French draft ai)plicable to time of war? 



Sir Charles Eussell. — I do not understand it to be so. I under- 

 stood this was intended to be applicable in time of peace also, that it 

 should be mutually agreed by treaty to allow this invasion of what 

 would have been, without such agreement, the invasion of the territori- 

 ality of the country. The object was one which all Governments would 

 appaiently liave a prima facie interest in effecting, namely, the preven- 

 tion of the fraudulent use of the national flag. 



The President. — Were there any negotiations between France and 

 England at that time about that, matter. 



Sir Charles Russell. — Certainly, what I have just read to you was 

 the communication from the J3uke of Malakoff to Lord Malmesbury. 



The President. — As it is dated in 1859, I thought it was a pro- 

 vision with reference to the Italian war against Austria. 



Sir Charles Eussell. — I do not see any trace of it. The real object 

 of the whole of this matter was the desire of those nations that were 

 really in earnest to suppress the slave trade, that flags of nations that 

 were themselves parties to the suppression should not be fraudulently 

 used, or that flags of other nations should not be fraudulently used to 

 cover that obnoxious traffic, I did read it, but probably I did not read 

 distinctly. It is headed "Instructions proposed to be issued to com- 

 manders of French ships of war." 

 1118 The President. — Yes, but it does not apply in time of peace. 

 It does not imply that it is connected with the slave trade nego- 

 tiations. That is what I did not know. 



Sir Charles Eussell, — If I may suggest, the first clause rather 

 shows it must have been contemj)lating a time of peace and not a time 

 of war: 



In consequence of the lapse of Treaty of 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 sus- 

 pected of fraudulently assnming the British flag. 



The President.— Yes, I beg your pardon, I had lost sight of it: you 

 did read it and I remember it now. 



Sir Charles Eussell. — Then, on page G4, are to be found similar 

 instructions "about to be issued" (they had then got to the point of 

 agreement) "to the Commanders of Cruisers". I need not trouble by 

 reading that; I think it follows on the same lines. 



There is only one other reference I have to make. The United States 

 come into this arrangement; and I will read General Cass's communi- 

 cation on the subject. It is the 12th of May, 1859, to Lord Lyons, who 

 was then Minister at Washnigton. A similar draft had been sent for 

 the consideration of the United States Government: 



As stated in the draft furnished by Lord Napier, no merchant-vessel navigating 

 the high seas is subject to any foreign jurisdiction. A vessel of war cannot, there- 



