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



You will see how very strained and exag:,cerated is the reference by 

 Mr. Blaine in the letter to which I have referred, which is that enor- 

 mously long letter of the 17th of December, 1890. It covers some 27 

 pages, but the passage in question is on page 283. The first part of it 

 admits the point I have just mentioned. 



Before the ratifications of the treaty were exchanged, in the following November, 

 it was determined that Napoleon should be sent to St. Helena. England thereupon 

 declined to ratify the treaty unless the United States should surrender the provision 

 respecting that island. After that came the stringent enactment of Parliament 

 forbidding A'essels to hover within 24 miles of the island. The United States was 

 already a great commercial power. She had 1,400,000 tons of shipping; more than 

 .500 ships bearing her flag were engaged in trade around the capes. Lord Salisbury 

 has had much to say about the liberty of the seas, but these 500 American ships 

 were denied the liberty of the seas in a space 50 miles wide in the South Atlantic 

 Ocean by the express authority of Great Britain. 



I say that is not correct at all; that all they were prohibited 

 1171 from doing was to hover there. There was nothing to prevent 

 them sailing within three miles of the coast, if they were pro- 

 ceeding upon their voyage. 



Mr. Justice Harlan. — When he uses the word "liberty" there, he 

 means the right to use the island in the ordinary way upon terms of 

 equality; and the Act does prevent other vessels from trading. 



Sir Charles Eussell. — But this would convey to the ordinary 

 reader, Mr. Justice Harlan with great deference, that there was an 

 exclusion by their being denied the liberty of the seas for that space of 

 50 miles. He is reckoning there 25 miles on each side of the island. 

 He conveys the idea that there is an exclusion from that distance. 

 There is nothing of the kind. ' What the mandate, or whatever it is to 

 be called, amounts to is a prohibition against landing and a prohibition 

 against hovering within that distance; but if a vessel is upon its jour- 

 ney east or west, there is nothing to prevent its sailing as close to the 

 island as it wishes — nothing whatever. 



But I need not say that an exceptional case, under exceptional cir- 

 cumstances, forms no precedent whatever. 



Now may I in this connection, as it has come up, again reiterate what 

 I have before said: that these isolated instances of assertion, well or 

 ill founded, prove nothing as to what is the rule or principle of inter- 

 national law. The principle of what is international law is well stated 

 by the late Chief Justice Cockburn at page 63 of the report of his 

 judgment. 



He is applying it to the question of the three mile zone, and treating 

 that still as, to some extent, an undetermined matter. 



And when in support of this position, or of the theory of the three-mile zone in 

 general, the statements of the writers on international law are relied on, the ques- 

 tion may well be asked — upon what authority are these statements founded? Wlien 

 and in what manner have the nations who are to be affected by such a rule as these 

 writers, following one another, have laid down, signified their assent to it? — to say 

 nothing of the difficulty which might be found in saying to which of these conflict- 

 ing opinions such assent had been given. 



For, even if entire unanimity had existed in respect of the important particulars 

 to which I have referred, in place of so much discrepancy of opinion, the question 

 would still remain, how far the law as stated by the publicists had received the 

 assent of the civilized nations of the world? For writers on international law, how- 

 ever valuable their labours may be to elucidating and ascertaining the principles 

 and rules of law, cannot make the law. To be binding, the law must have received 

 the assent of the nations who are to be bound by it. This assent may be express — 

 as by treaty, or the acknowledged concurrence of governments — or may be implied 

 from established usage — an instance of which is to be found in the fact that mer- 

 chant vessels on the high seas are held to be subject only to the law of the nation 

 under whose flag they sail, while in the ports of a foreign state they are subject to 



