68 COUNTER-CASE OF GREAT BRITAIN. 



THERE CAN BE NO RIGHT OF PROTECTION IN SEAS 

 WHERE THERE IS NO JURISDICTION. 



That right of protection implies jurisdiction over the 

 waters wliere it is to be exercised, is clear from the fol- 

 lowing propositions: 



(1.) That, on the unappropriated sea, all nations are equal, 

 and independent of one another; 



(2.) That, in time of peace, a vessel thereon cannot be 

 forcibly interfered with by a foreign Power, except for 

 piracy; and 



(3.) That fishing is not piracy. 



The last of these propositions is too elementary to need 



support. The other two, if authority be supposed neces- 



, sary, are illustrated by Lord Stowell's Judgment in the case 



luiraity" Cases, of " LcLouis," already cited upon another point in the Brit- 



Toi.ii, p. 210. jg]j Case,p. 154, in which itwas held that a French shipcould 



not be condemned as a pirate for being employed in the 



Slave Trade, and forcibly resisting the search of the British 



cruizers. In that case, Lord Stowell said : 



Ibid., p. 243. Upon the first question, whether the right of search exists iu time 

 of peace, I have to observ^e, that two principles of public law are gen- 

 erally 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 permaneirt or 

 casual, gives no additional right to the more powerful neighbour; and 

 any advantage 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 liave an 

 equal right to the uninterrupted use of the unappropriated parts of 

 the ocean for their navigatiou. In places where no local aathority exists, 

 where the subjects of all states meet upon a footing of entire equality 

 78 and independence, no one state, or any of its subjects, has a right to 

 assume or exercise autliority orer tJie subjects of another 



Dodson's Ad- rpj^g right of visitation being iu this present case exercised in time of 

 voMi^p. 246!^^' peace, the question arises, how it is to be legalized? And looking to 

 what I have descrilied as the known existing law of nations evidenced 

 by all authority and all practice, it nuist be upon the ground that the 

 captured vessel is to lie taken legally^ as a pirate, or else some new 

 ground is to be assumed on which this right which has been distinctly 

 admitted not to exist generally in time of peace can be supported. 

 . . . . The question then comes to this: — Can the occupation of 



Ibid., p. 247. ^i^^g French * vessel be legally deemed a piracy, inferring, as it must do, 

 if it be so, all the pains and penalties of piracy? .... In truth 

 it wants some of the distinguishing features of that offence. It is 

 not the act of free-booters, enemies of the human race, renouncing 

 every country, and ravaging every country in its coasts and vessels 

 indiscriminately, and thereby creating an universal terror and alarm. 



Ibm., p. 248. .... Be the malignity of the practice what it may, it is not tliat 

 oi piracy, * in legal consideration. 



HER MA.JESTY'S GOVERNMENT PROTEST THAT NO QUES- 

 TION AS TO RIGHTS OF THE UNITED STATES OUTSIDE 

 THE AREA IN WHICH THEY CLAIM EXCLUSIVE JURIS- 

 DICTION, IS WITHIN TERMS OF REFERENCE. 



Her Majesty's Government respectfully protest that. the 

 question whether the United States have any jurisdiction 

 outside Behring Sea — or, to speak more strictly, outside 

 that part of Behring Sea in which the United States claim 

 exclusive jurisdiction — is not referred to this high Tribuna*( 

 by the terms of the Treaty of 1892. 



* The italics are in tlie original. 



