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



Senator MoRCrAN. — To it being stated in the libel or information tliat 

 tlie United States claimed a riglit under the laws of nations 5 and also, 

 that it was possessed of a property right. 



Sir Charles Kussell. — You mean to say if they had said we are 

 complaining- of a breach of the municipal Statute, and also complaining 

 of a breach of law of property? 



Senator Morgan. — Yes. 



Sir Charles Kussell. — Certainly there would have been a repug- 

 nance: I shall presently have to deal with that. 



Lord Hannen. — I suppose you are pointing to this: If it had been 

 simply a seizure by virtue of this right of property, or protection of 

 property, there would have been no right to fine. 



Sir Charles Eussell." — Much more than that, my Lord : but to that, 

 amongst other reasons. There would have been no right to tine; and 

 the court that would have had the right to adjudicate upon a claim of 

 that kind would not be sitting as a Municipal Court — a Court belonging 

 to Alaska in the United States, — but would be sitting as a Prize Coiu-t 

 representing the whole world. That is tlie real vital distinction; and 

 the distinction that my learned friend Mr. Carter in his ingenious 

 attempt to base the judgment, or justify the judgment, of this "Two 

 penny-half penny" judge — as my friend in a moment of forgetfulness 

 called him — is wholly futile. He has entirely forgotten that a Munici- 

 pal Court, as such, does not administer International Law at all; It has 

 to administer the law of the State, and the law of the State only. 



Senator Morgan. — That was a United States Court? 



Sir Charles Russell. — Yes. I intended, in a moment or two, to 

 develope this idea, but as it is mentioned, let me just say a word upon 

 it in passing. I am not concerned to dispute that the Sovereign Power 

 at whose instance a capture is made upon the high seas may not con- 

 stitute a Municipal Court, 2^ro hac vice, a Prize Court; but accord- 

 845 ing to its original constitution and functions it is a Municipal 

 Court having no cognizance of any law except Municipal law, 

 and International law so far as it enters into Municipal law, but no 

 further. To enable it to adjudicate as a Prize Court, it must be brought 

 to the apprehension of the Judge that he is no longer in a United States 

 Court administering the municipal law — that he must shut his eyes to 

 Municipal law, and that he is administering International law in the 

 interests of all nations. The distinction is broad, clear, unmistakable 

 and intelligible. But I am i^roceediug still on the theory that he did 

 not affect to act, that he was not asked to act, in any other character 

 than as a municipal Judge construing a municipal statute, and for that 

 purpose of course it is necessary to examine the judgment itself. The 1 

 judgment is to be found on page 113. 



The President. — This is on your point of fact that you are arguing 

 all tins'? 



Sir Charles Russell. — Yes. 



The President. — I understood that from the principles you laid 

 down when you began this part of your argument? 



Sir Charles Russell, — Quite so. The judgment of Mr. Justice 

 Dawson is to be found at page 113 of Volume I of the 

 judgei>^wsoii. °*^ -A^ppendix to the American Case. I will not read this 

 judgment because it goes over the same ground as the 

 later judgment which I desire to have read more fully. It relates to 

 the seizures effected in 1880. He is addressing the jury, and telling 

 them that the information is preferred and filed by the District Attor- 

 ney, based uijon an affidavit charging the Defendants with having 



