of this claim, it was not relinquished by Great Britain when a treaty of peace was made. It has been disused, but never abandoned." Was it correct, asked Sir Charles Russell, while admitting that war grew out of the claim, and that the claim had been "disused," to say that it had never been abandoned? In connection with this proposition, Mr. Phelps had declared that the right of search was "exercised without question against private vessels suspected of being engaged in the slave trade." This was, declared Sir Charles, a further inaccuracy; it was only under treaty that such a right existed. It was true that Lord Palmerston had once put forward a general right of visitation and search for the purpose of establishing the nationality of the ship, but from this assertion he retired; and the responsible minister of the Crown, acting upon the opinion of the law officers of the day, expressly disclaimed the pretension in his place in Parliament, and the disclaimer was reiterated and communicated to the United States in diplomatic correspondence. Subsequently, in 1862, a treaty was entered into between the United States and Great Britain for the purpose of conceding to the ships of war of each power the right, within certain waters in which the African slave trade was carried on, to search vessels of the other power suspected of being engaged in such trade.

Examination of
Analogies.

At this point Sir Charles Russell said that he would pass to one of a series of illustrations given by Mr. Phelps, as supposed analogies to the right of protection claimed by the United States. The first was stated in the Argument of the United States as follows:

"Suppose that some method of explosive destruction should be discovered by which vessels on the seas adjacent to the Newfoundland coast outside of the jurisdictional line could, with profit to themselves, destroy all the fish that resort to those coasts, and so put an end to the whole fishing industry, upon which their inhabitants so largely depend. Would this be a business that would be held justifiable as a part of the freedom of the sea? Although the fish are admitted to be purely feræ naturæ, and the general ight of fishing in the open seas outside of certain limits is not denied."

Commenting on this passage, Sir Charles Russell proceeded: "Well, I would first ask: Is there any analogy between that case and the case we are discussing, if that can be called the exercise of the right of fishing at all? As I read the case, I fail to see where the profit comes in, because he says: "Could, with profit to themselves, destroy all the fish.'

"Mr. PHELPS. Yes.

"Sir CHARLES RUSSELL. And gather them-perhaps that is understood?

"Mr. PHELPS. Certainly.

"Sir CHARLES RUSSELL. 'Destroy all the fish and gather them.' I have, in the first instance, to say that it is a little extravagant to compare that which is not a known or recognized form of fishing with the pursuit of seals pelagically, which is the oldest form of the pursuit of seals known in the history of the pursuit itself.

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Now, the next case that is put is this:

"An Atlantic cable has been laid between America and Great Britain, the operation of which is important to those countries and to the world. Suppose some method of ceep-sea fishing or marine exploration should be invented, profitable to those engaged in it, but which should interrupt the operation of the cable and perhaps endanger its existence. Would those nations be powerless to defend themselves against such consequences, because the act is perpetrated upon the high seas?'

"Well, one would require to know the circumstances intended to be contemplated by that paragraph. * But in truth all this matter (because of the uncertainty of what the rights would be juridically considered in relation to such a matter) has been already dealt with, with the cooperative assent of, I may say, all the civilized powers in the world. * By the treaty of the 14th March 1884, * willful and negligent interruptions of telegraphic communication are made punishable without prejudice to civil action (art. 2); offenders are to be tried in the courts of the country of their own ship or nation (art. 8); and when there is reason to believe that a ship has infringed the treaty, the cruisers of the contracting parties may require production from the master of 'pièces officielles' proving its nationality (art. 10).

"My friend says:

"If a light-house were erected by a nation in waters outside of the 3-mile line, for the benefit of its own commerce and that of the world, "that is the first 'if'

"if some pursuit for gain on the adjacent high sea should be discovered which would obscure the light or endanger the light-house or the lives of its inmates, would that government be defenseless?'

"Well, it is a very difficult case to realize what is really meant by that. * I wish to point out that I think my friend has, for the moment, forgotten that if a light-house is built upon a rock or upon piles driven into the bed of the sea, it becomes, as far as that light-house is concerned, part of the territory of the nation which has erected it, and, as part of the territory of the nation which has erected it, it has, incident to it, all the rights that belong to the protection of territory-no more and no less.

“Mr. PHELPS. If it should be five miles out?

"Sir CHARLES RUSSELL. Certainly, undoubtedly. The most important light-houses in the world are outside the threemile limit.

"Lord HANNEN. The great Eddystone light-house, fourteen miles off the land, is built an the bed of a rock.

"Sir CHARLES RUSSELL. That point has never been doubted; and if it were there is ample authority to support it. The right to acquire by the construction of a light-house on a rock in mid-ocean a territorial right in respect of the space so occupied is undoubted; and therefore I answer my friend's case by saying that ordinary territorial law would apply to it-there is no reason why any different territorial law should apply."

Pearl Fisheries.

There was one set of cases cited by Mr. The Argumentum ad Phelps which might, said Sir Charles Russell, Hominem; the be called appeals in the nature of argumentum ad hominem, where an analogy to the claim of the United States was supposed to be found in certain legislation of Great Britain, especially legislation in relation to and by her colonies. In regard to all these cases he was entitled to assume, unless the contrary was shown, that no instance could be adduced of any assertion of a right beyond territorial waters; and in the absence of evidence of such assertion, which would have been something to the point, the cases did not afford even an argumentum ad hominem. By a uniform rule of construction, British statutes referring generally to persons are, said Sir Charles Russell, extraterritorially applicable only to persons subject to British laws. But, even if a case were clearly made out in which a legislature had affected to bind foreigners outside of territorial limits, it was either a good law or a bad law; and it was not a good law because a particular power had affected to usurp an authority which international law did not warrant it in assuming.

The case of the Ceylon pearl fishery had been cited. How old these fisheries were, Sir Charles Russell said he did not know. It had been said that they were mentioned by Herodotus, but he had not been able to verify the statement. But it was an undoubted fact that for many generations the owners of the territory of Ceylon had, with the acquiescence of all other powers of the world, been allowed to exercise dominion in respect of those fisheries, which were contiguous to the coast but extended beyond the three-mile belt; and the case might be referred to the considerations of exclusive possession, contiguity to the shore, and the manner in which the fisheries were themselves carried on. His learned friend, Mr. Carter, was, said Sir Charles Russell, "very powerful" in relation to the suggestion that the claim to the Ceylon pearl fisheries might be defended on the ground of the occupation of portions

of the sea away from the land; and had said that, if this was so, all a nation had to do was to find the feeding bank of some valuable race of fish and bouy it, and say "That is our territory." Was this an argument to be treated seriously? Was there any analogy between the supposed case and that of the occupation of a small portion of the bottom of the sea contiguous to admitted territory, and the pursuit there of this particular fishery? There was undoubtedly a warrant in law for the distinction just as there was an obvious distinction in fact, between such a fishery, whether pearl, coral, or oyster, and a fishery dependent on the pursuit of a free swimming fish in the ocean. In the case of Queen . Keyn, which had been so often referred to, Chief Justice Cockburn had said that a portion of the bed of the sea, where it could be physically, permanently occupied, might be subject to occupation in the same manner as unoccupied territory; and Vattel had said: "Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property?"

But "the great point," said Sir Charles Russell, "which we are here contending for, and which is the real point between us, is this: whether, in time of peace, there is any justification upon the ground that the ship of one nation has got hold of a piece of property of another nation-the right in time of peace, and outside the territorial limits upon the high seas-for the claim to search that vessel, seize that vessel, bring it into a prize court, which is in fact a war tribunal, and there condemn it."

Position of United States as to Visitation and Search.

In connection with this point, Sir Charles Russell cited a series of utterances of the Government of the United States, from 1843 down to 1880, on the question of visitation and search. The following passage from this part of his argument may be quoted:

"President Tyler in 1843 communicated to the House of Representatives correspondence as to the construction of the Ashburton treaty of 1842, for, among other things, the final suppression of the African slave trade. Great Britain asserted that it authorized a mutual right of search. The United States opposed this view successfully.

"This is the way the President, who formulates his message after the best legal and constitutional advice he could obtain, deals with this:

"To seize and detain a ship upon suspicion of piracy, with probable cause and good faith, affords no just ground either for complaint on the

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part of the nation whose flag she bears, or claim of indemnity on the part of the owner. 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 adventurers, 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 pretense 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.'

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"Mr. JUSTICE HARLAN. Sir Charles, suppose the case of a vessel fitted out on the European side of the Atlantic Ocean, and loaded with goods for the express purpose of smuggling them into the United States in violation of its revenue laws; would the language of Mr. Marcy go to the extent that the United States could only seize that vessel after it got within its territorial waters?

"Sir CHARLES RUSSELL. Certainly, the language would; but the case that you put is undoubtedly one of the most difficult cases that one has to consider-the most difficult. You have a vessel as to which you have information such as you suggest, that she is coming to your coasts for the express purpose of violating your laws, but is outside your three mile limit. Are you to allow her to take the chance of darkness on a coast imperfectly guarded and to run ashore her cargo in boats in violation of your revenue laws? That is a question I have had to consider, and it is one of enormous difficulty. If I may express an opinion to which no value is to be attached, it would be probable in such a case, if the executive authority had clear and decisive information of the character that you mention, he would probably do something before the vessel got within the three-mile limit, if it was proved to be necessary, relying upon the noninterference of the state to which that fraudulent vessel belonged not to make any complaint or raise any question whether the strict territorial limits had been exceeded. * ** *

"Mr. Cass, the Secretary of State, writes to Mr. Dallas on February the 23d, 1859, apropos of a discussion as to the right of visit not existing in time of peace, even in the case of a slaver:

"The forcible visitation of vessels upon the ocean is prohibited by the law of nations, in time of peace, and this exemption from foreign jurisdiction is now recognized by Great Britain, and, it is believed, by all other commercial powers, even if the exercise of a right of visit were essential to the suppression of the slave trade. Whether such a right should be conceded by one nation to its co-states of the world is a question for its own consideration, involving very serious consequences, but which is little likely to encounter any prejudiced feelings in favor of the slave trade in its solution, nor to be influenced by them.'