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



Sir Charles Russell. — In some cases the President, and in other 

 cases the Secretary of State. 



I will give the references in each case. The first is a Message from 

 President Tyler in 1843, commanicatii)g to the House of Representa- 

 tives correspondence as to the construction of the Ashbnrton Treaty of 

 1842, for, among other things, the final suppression of the African slave 

 trade. Great Britain asserted tbat it authorized a mutual right of 

 search. The United States opposed this view successfully. 



This is the way the President, who foi-niulates his message after the 

 best legal and constitutional advice he could obtain, deals with this: 



The attempt to justify snch a pretension [that is, to subject tlie trade of tlie world 

 to a system of maritime police adopted at will by a naval Power, in any places or iu 

 any articles which such t'ower might see fit to prohibit to its own sni)jects or citi- 

 zens] from the right to visit and detain ships upon reasonable suspicion of piracy 

 would deservedly be exposed to universal condemnation, since it would be an attempt 

 to convert an established rule of maritime law, incorporated as a principle into the 

 international code by the consent of all nations, into a rule and principle adopted 

 by a single nation, and enforced only by its assumed authority. To seize and detain 

 a ship upon suspicion of piracy, with probable canse and good faith, affords no just 

 ground either for complaint on the jjart of the nation whose flag she bears, or claim 

 of indemnity on the part of the owner. The universal law sanctions, and the com- 

 mon good requires the existence of such a rule. The right, under such circumstances, 

 not only to visit and detain, but to search a ship, is a perfect right, and involves 

 neither resi)ousibility nor indemnity. 



But with this single exception, no nation has, in time of peace, any authority to 

 detain the ships of another upon the high seas, on any pretext whatever, beyond 

 the limits of her territorial jurisdiction. 



Then in 1855 Mr. Marcy, the then Secretary of State, protesting 

 against certain orders of the British and French Governments to naval 

 commanders to prevent by force, if necessary, the landing of adventur- 

 ers, from any nation, on the Island of Cuba, with hostile intent, says: 



The right of visitation and search is a belligerent right, and no nation which is 

 not engaged in hostilities can have any pretence to exercise it upon the open sea. 



The established doctrine upon this subject is that the right of visitation and search 

 of vessels, armed or unarmed, navigating the high seas in time of peace does not 

 belong to the public ships of any nation. 



Senator Morgan. — As against the ships of any other nation. 

 1186 Sir Charles Russell. — Certainly. 



Senator Morgan. — Not its own. 

 Sir Charles Russell. — No, certainly not his own. We are talking 

 of public sliips asserting the right of visitation against ships of another 

 nation in time of peace. 



This right is strictly a belligerent right, allowed by the general consent of nations 

 in time of war, and limited to those occasions. 



The undersigned avails himself of the authority and language of a distinguished 

 writer on international law: — We again repeat that it is impossible to show a single 

 passage of any institutional writer on public law, or the judgment of any court by 

 which that law is administered, either in Europe or America, which will justify the 

 exercise of such a right on the high seas in time of peace independent of special 

 compact. 



The right of seizure for a breach of the revenue laws, or laws of trade and navi- 

 gation of a particular country, is quite different. 



The utmost length to which the exercise of this right on the high seas has ever 

 been carried in respect to the vessels of another nation has been to justify seizing 

 them within the territorial jurisdiction of the state against whose laws they offend, 

 and pursuing them in case of flight beyond that limit, arresting them on the ocean, 

 and bringing them in for adjudication. This, however, suggests the .Supreme Court 

 of the United States, in the case before quoted, of the Marianna Flora, has never 

 been supposed to draw after it any right of visitation or search. The party in such 

 case, seizes at his peril. If he establishes the forfeiture he is justified. 



Mr. Justice Harlan. — Sir Charles, suppose the case of a vessel 

 fitted out on the European side of the Atlantic Ocean, and loaded with 



