ORAL AllGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 333 



fore, visit, detain, .arrest, or seize (except under Treaty) any merchant-vessel not 

 recognised as belonging to her own nation. And as a necessary consequence from 

 this rule, it is added in the siune draft tliat in every case it is clearly to be under- 

 stood that the vessel of war wliicli determines to board a merchant-vessel must do 

 so at her own risk and peril, and must remain responsible for all the conscfpieuces 

 which may result from her owu act. 



Then General Cass proceeds: 



These extracts, which fix the responsibility of every Government whose officers 

 interrupt the voyage of a merchant-vessel upon the ocean, suggest verystrongly the 

 adoption by each Government of such instructions to its own officers, as will tend to 

 make them appreciate this responsibility, and lead fchem to observe great caution in 

 acting upon their suspicions against such a vessel. The same extracts supply a very 

 just limitation, also in respect to the cases to which tlie instructions can, under any 

 circumstances, apply. 



And then follows this passage, to which I would ask attention. 



Leaving out of view, 



says General Cass 



the crime of piracy, which happily is now seldom committed, the only instance 

 (except under Treaty) in which a ship of war may be excused in visiting, detaining, 

 arresting, or seizing any merchant-vessel bearing a foreign fljig, is when such vessel 

 is, for good and sulificient reasons, believed to belong, iu fact, to the country of the 

 visiting ship, — 



their own nationals' ship. 



A slaver cannot be detained by a foreign vessel because it is a slaver, unless 



1119 the right of detention in such a case has been conferred by tlie Government 



to whicli the foreign vessel belongs. Except so far as it may have parted with 



it by Treaty, every nation has the exclusive care of its own Hag upon the high seas. 



The final letter is also a letter from General Cass of the 25th of Janu- 

 ary, 1859, in whicli he, referring to the African Slave Trade, says, and 

 quite justl}^ says : 



The United States were among the earliest of the nations of the world to denounce 

 the Traffic as unjnst and inhuman. 



And then he proceeds : 



While, however, the President is thus earnestly opposed to the African Slave 

 Trade, and thus determined to give full effect to the laws of the United States for 

 its suppression, he cannot permit himself, in so doing, to concur in any principle, or 

 assent to any practice, which he believes would be inconsistent with that entire 

 immunity of merchant-vessels upon the ocean, in time of peace, for wliich this Gov- 

 ernment has always contended, and in whose ijreservation the commerce of the 

 world has so deep an interest. 



This is also the position, I am gratified to observe, of the Gover'nment of France. 

 France, like the United States, recognises no right of search or visit upon the high 

 seas, except in time of war. France, like the United States, holds, in the language 

 of your Memorandum, that an " armed vessel cannot visit, detain, arrest, or sieze any 

 but such merchant-vessels as it ascertains to belong to the same nation to which the 

 armed vessel itself belongs." France, like the United States, holds further, that 

 while cases may exist of a fr.andulent assumption of a flag, the verification of such 

 a case must be made at the peril of the party making it, or in the words of your 

 Memorandum, "under all circumstances it is well understood that the armed vessel 

 that may determine to board a foreign merchant-vessel, does so in every instance at 

 its own risk and peril, and stands responsible for all the consequences which may 

 follow the act." 



While thus recognizing the immunity of merchant-vessels on the ocean, and the 

 grave resjionsibility which is assumed by a ship of war when she boards a foreign 

 ship in order to verify its flag, your Memorandum suggests some interesting views 

 in respect to the caution with which such a verification should be pursued, and such 

 a responsibility exercised. 



I do not understand that the French Government desires to limit this responsi- 

 bility, or to change in any way that rule of international law by which in time of 

 peace an honest merchantman is protected on the oceau^ from aiiy visit, detention, 

 or search whatever. 



