ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 385 



Sir Charles Russell. — It is a belligerent act, whether it relates 

 to a past or present transaction. 



Senator Morgan. — The right claimed by the United States, is in 

 the nature of self-defence, and relates to the prevention of a trespass 

 immediately threatened or being consummated. 



Sir Charles Russell. — Yes; but the Senator must be good enough 

 to bear in mind those are not the facts. 



The facts are the seizure of some of the vessels when the sealing 

 was past and gone, and when they had the seal-skins on board. 



Senator Morgan. — I was speaking of principles of international 

 law, and not trying to make an application of them. 



Sir Charles Russell. — Very well ; but I think you will find, Sir, 

 that even that narrow application will not do. 



I now refer to those printed authorities, and if you will be good 

 enough to take the print that has been given to you I will refer first to 

 the case of the "Louis". This was decided by Lord Stowell in 1817, 

 and the facts that gave rise to it were these. A French ship 

 1182 engaged in the slave trade was condemned, and it came before 

 Lord Stowell upon the question whether or not it could be justi- 

 fied. He says : 



Upon the first question, whether the right of search exists in time of peace, I have to 

 observe that two principles of public law are generally recognized as fundamental. 

 One is the perfect equality and entire independence of all distinct States. Relative 

 magnitude creates no distinction of right; relative imbecility, whether permanent 

 or casual, gives no additional right to the more powerful neighl)our ; and any advan- 

 tage seized upon that ground is mere usurpation. This is the great foundation of 

 public law, which it mainly concerns the peace of mankind, both in their politic 

 and private capacities, to preserve inviolate. The second is, that all nations being 

 equal, all have an equal right to the uninterrupted use of the unappropriated parts 

 of the ocean for their navigation. In places where no local authority exists, where 

 the subjects of all States meet upon a footing of entire equality and independence, 

 no one State, or any of its subjects, has a right to assume or exercise authority over 

 the subjects of another. I caii find no authority that gives the right of interruption 

 to the navigation of States in amity upon the high seas, excepting that which the 

 rights of war give to both belligerents against neutrals. This right, incommodious 

 as its exercise may occasionally be to those who are subjected to it, has been fully 

 established in the legal practice of nations, having for its foundation the necessities 

 of self-defence, in preventing the enemy from being supplied with the instruments 

 of war, and from having his means of annoyance augmented by the advantages of 

 maritime commerce; against the property of his enemy each belligerent has the 

 extreme rights of war. Against that of neutrals — the friends of both — each has the 

 right of visitation and search, and of pursuing an inquiry whether they are employed 

 in the service of his enemy, therijjht being subject, in almost all cases of an inquiry 

 wrongfully pursued, to a compensation in costs and damages. 



With professed pirates there is no state of peace. They are the enemies of every 

 country, and at all times, and therefore are universally subject to the extreme 

 rights of war. 



Then I pass over a passage. 



Another exploded practice was that of Princes granting private letters of marque 

 against the subjects of Powers in amity, by whom they had been injured, without 

 being able to obtain redress from the Sovereign or Tribunals of that country. But 

 at present, under the law, as now generally understood and practised, no nation can 

 exercise a right of visitation and search upon the common and unappropriated parts 

 of the sea, save only on the belligerent claim. 



Senator Morgan. — I agree to that. • 



Sir Charles Russell. — If you please. I will come to that later. 



If it be asked why the right of search does not exist in time of peace as well as 

 in war, the answer is prompt: that it has not the same foundation on which alone 

 it is tolerated in war — the necessities of self-defence. They introduced it in war, 



B S, PT XIII 25 



