ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 393 



rights of defence, and of preservation, properly so called. The chap- 

 ter which I desire to refer to particularly is in a hook treated, and 

 deservedly treated, as a book of authority in our English Courts, a hook 

 as to wliich I have to make my own acknowledgments of its practical 

 utility in the actual business of my profession ; I mean the Treatise of Mr. 

 Hall. Upon consideration, Mr. President, and regarding the very seri- 

 ous demands that I have made upon the patience of this Tribunal, I 

 have not thought it right to trouble you at this stage with any lengthened 

 citation from it. I will, however, attempt briefly to summarize what is 

 the principle, and the limitation of the principle, which he lays down in 

 this connection. He deals with these right of self-defence and self- 

 preservation on the same j)rinciple precisely, as Mr. Webster did in 

 that despatch in relation to the " Caroline," which I have more than 

 once referred to, that is to say, as rights which spring into existence in 

 cases of grave and serious emergency, the occasion only covering what 

 is essentially necessary for immediate protection. It applies to cases 

 only where there is no opportunity of remonstrance to the other nation 

 against whom those acts are directed ; that these acts may generally be 

 treated by the nation against whose nationals those acts are directed 

 as a casus belli; that they are not rights in the legal sense of the term, 

 but are in the nature of belligerent or quasi belligerent rights; and 

 lastly that they are to be resorted to only if other means, diplomatic 

 representations and the like, have failed. 



I will only read one sentence in justification of that last which is an 

 important point. He says : 



As in other cases tbe danger must be serious and imminent, and prevention, tlirougli 

 the agency of the State whose rights are disregarded, must be impossible. 



One observation I should like to make which I had intended yester- 

 day to make in connection with the case of Church v. Hubbard with 

 which I dealt at length, and as to which I also cited the comment 

 and criticism of Mr. Dana in his edition of " Wheaton's International 

 Law". My learned friend, Mr. Carter, referred to an obiter dictum of 

 Chief Justice Cockburn in the celebrated case of the Queen v. Keyn, 

 as though it added force or authority to the expression of opinion of 

 Chief Justice Marshall. The Chief Justice Cockburn was not con- 

 cerned in considering the question of the limitation of rights inter- 

 nationally considered at all. He was concerned with the question 

 1192 which I endeavoured to explain yesterday whether, according to 

 the law of England, although the three mile zone was inter- 

 nationally regarded as part of the territory of the country, it could be 

 so regarded as to bring it within the area of the criminal jurisdiction 

 of the country without express legislation ; and it was therefore merely 

 incidental to the consideration of that question that he refers to the 

 authority of, among others. Chief Justice Marshall, an authority which 

 I do not dispute. The learned Judge's dictum was addressed to the 

 case of an invasion of the revenue law; and although the seizure in 

 that case was at a greater distance than, I think, has ever been recog- 

 nized as within proper limits by any other Judge, yet it is to be 

 observed that Chief Justice Marshall was not considering the question 

 as between a nation asserting the right and a nation resisting the right, 

 but was merely called upon to determine in that particular case whether 

 the risk of the seizure which, in fact, took place, was or was not a risk 

 contemplated by the i^arties within the meaning of a particular con- 

 tract of insurance. 



