ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 377 



the local law as well as to that of their own country. In the absence of proof of 

 assent as derived from one or other of these sources, no unanimity on the part of 

 theoretical writers would warrant the judicial application of the law on the sole 

 authority of their views or statements. 



Nor, in my opinion would the clearest proof of unanimous assent on the part of 

 other nations be sufficient to authorize the tribunals of this country to apply witli- 

 out an Act of parliament, what would practically amount to a new law. In so doing 



we should be unjustifiably usurping the province of the legislature. The assent 

 1172 of nations is doubtless sufficient to give the power of parliamentary legislation 



in a matter otherwise within the sphere of international law; but it would be 

 powerless to confer, without such legislation, a jurisdiction beyond and unknown to 

 the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships 

 on a portion of the high seas. 



Now I am glad, Mr. President, to have made considerable progress, 

 and to have gone a long way towards getting to the end of this argu- 

 ment; but there are still some matters with which I must trouble you. 

 There are three cases referred to by my friend, Mr. Phelps, in his Argu- 

 ment, which deserve consideration by themselves. They are the cases 

 of Church v. Eubbart; Rose v. Himely; and Hudson v. Gucstier. 



Now the case of Church v. Hubbart, of which both Mr. Phelps and 

 Mr. Carter made some use in their arguments, when you come to con- 

 sider it, is really about the simplest case in the world; and, if I may 

 be allowed to say so of so great a Judge as Chief Justice Marshall, it 

 was so simple a case that I am surprised that he found himself able to 

 make an important judicial utterance depend upon it. 



Now I will tell the Court what the case was. It was not a case 

 involving the question of international rights as between nations, at 

 ail : it was a case between a man who had insured his ship "the Aurora" 

 and an underwriter, who was the insurer; and in the policies of insur- 

 ance there was an exception from the general risk which the under- 

 writer undertook. I am now speaking with the report in the 2nd of 

 Cranch's Reports, page 187, before me. There were two policies of 

 insurance; in each case there was excepted from the general risk which 

 the underwriter undertook, these words: in one policy "The insurers 

 are not liable for seizure by the Portuguese for illicit trade." In the 

 other "The insurers do not take the risk of illicit trade with the Portu- 

 guese.'''' And it was held (and I think quite rightly held), that those two 

 exceptions meant the same thing. The sole question, therefore, in 

 determining whether the underwriter was liable or not, was whether 

 the seizure of a ship, which was in tact seized by the Portuguese author- 

 ities, was to be regarded as a seizure by the Portuguese authorities for 

 engaging in illicit trade, or whether it was to be regarded as an unjus- 

 tifiable and gratuitous act of maritime trespass. That was absolutely 

 the sole question in the case. 



Now the Portuguese Government had forbidden trade with particular 

 ports in its dominions, and the facts found by the Judge who enquired 

 into them, in order to ascertain whether the vessel was seized for illicit 

 trade, are set out at page 192, where it is stated that in consequence of 

 the acts of examination made on board the brig Aurora, and of ques- 

 tions put to her Captain, and so on, the Judge comes to the conclusion 

 that 



The motives hereby alleged for having put into a port of this establishment are 

 unprecedented, and inadmissible, and the causes assigned cannot be proved. 



It was alleged that she had gone in there for water or some 

 1173 other need, and not for illicit trade. The Judge came to the con- 

 clusion that that was not true. He says: 



I therefore believe it to be all affected for the purpose of introducing here com- 

 mercial and contraband articles of which the cargo is composed; if there are not 

 other motives besides these, of which there is the greatest presumption. 



