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



and practice has established it. No such necessities have introduced it in time of 

 peace, and no sucli practice has established it. . . 



Piracy being excluded, the Court has to look for some new and peculiar ground; 

 but, in the first place, a new and very extensive grouud is offered to it by the sug- 

 gestion, which has been strongly pressed, that this trade — 



That is the slave trade: 



if not the crime of piracy, is nevertheless crime, and that every nation, and, indeed, 

 every individual, has not only a right, but a duty, to prevent in every place the 

 commission of crime. It is a sphere of duty sufficiently large that is thus opened 



out to communities and to their members. But to establish the conseciuence 

 1183 required, it is first necessary to establish that the right to interpose by force 



to prevent the commission of crime commences not upon the commencement 

 of the overt act, nor upon the evident approach towards it, but on the bare surmise 

 grounded on the mere possibility; for unless it goes that length it will not support 

 the right of forcible inquiry and search. 



He tben proceeds to consider that matter, and at the bottom of the 

 page he continues. 



It (the Court) must look to the legal standard of morality ; and upon a question 

 of this nature, that standard must be found in the law of nations as fixed and evi- 

 denced by general and ancient and admitted practice, by Treaties, and by the gen- 

 eral tenour of the Laws and Ordinances, and the formal transactions of civilized 

 States. 



The next case was decided in 1824 by Chief Justice Marshall, and 

 was also a slave case. He refers to the " Le Louis " and he goes on in 

 the third paragraph : 



In the very full and elaborate opinion given on this case, Sir William Scott, in 

 explicit terms, lays down the broad principle that the right of search is confined to 

 a state of war. It is a right strictly belligerent in its character, which can never 

 be exercised by a nation at peace, except against professed pirates, w'ho are the 

 enemies of the human race. The act of trading in slaves, however detestable, was 

 not, he said, " the act of freebooters, enemies of the human race, renouncing every 

 country, and ravaging every country, in its coasts and vessels indiscriminately ". It 

 was not piracy. 



The right of visitation and search being strictly a belligerent right, and the Slave 

 Trade being neither piratical nor contrary to the law of nations, the principle is 

 asserted, and maintained with great strength of reasoning, that it cannot be exer- 

 cised on the vessels of a foreign Power, unless permitted by Treaty. 



The next case of the "Apollon " I pass over. It has been already- 

 referred to in the discussion we had in relation to one of the illustra- 

 tions given by Mr. Phelps. 



The next is the judgment of Mr. Justice Story in " The Marianua 

 Flora". He says: 



It is necessary to ascertain what are the right? and duties of armed and other 

 ships navigating the ocean in time of peace. It io admitted that the right of visita- 

 tion and search does not, under such circumstances, belong to the public ships of 

 any nation. This right is strictly a belligerent right, allowed by the general con- 

 sent of nations in time of war, and limited to those occasions. It is true that it has 

 been held in the Courts of this country that American ships oifending against our 

 laws, and foreign ships in like manner offending within our jurisdiction, may after- 

 wards be pursued and seized upon the ocean, and rightfully brought into our ports 

 for adjudication. This, however, has never been sujiposed to draw after it any 

 right of visitation or search. The party, in such case, seizes at his peril. If he estab- 

 lishes the forfeiture, he is justified. If he fails, he must make full compensation in 

 damages. 



Upon the ocean, then, in time of peace, all possess an entire equality. It is the 

 common highwaj' of all; appropriated to the use of all; and no one can vindicate to 

 himself a superior or exclusive prerogative there. Every ship sails there with the 

 unquestionable right of pursuing her own lawful business without interruption; 

 but whatever may be that business, she is bound to pursue it in such a manner as 

 not to violate the rights of others. The general maxim in such cases is, "sic utei'e 

 tuo, ut lion alienum Icedas." 



