ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 109 



the respective Powers, and tbe riglit of seizure of vessels engaged in 

 carrying on that trade, a seizure effected by one or otlier of the Powers 

 brought into a Prize court, the question in that case woukl not be 

 whether, according to the general intern ational law, the seizure was 

 justifiable and confiscation ought to follow, but whether by interna- 

 tional law, plus the provisions of this treaty, the particular property 

 had or had not been justifiably captured. 



Mr. Justice Harlan. — It may assist you in your argument. Sir 

 Charles, for me to suggest that this Court in Alaska has jurisdiction 

 which is defined by an Act of Congress, as it exercises only such juris- 

 diction as the Act creating it authorizes. 



Sir Charles Kussell. — That is my point. I am obliged to you, 

 Mr. Justice Harlan, for mentioning it. 



Lord Hannen. — Have you got the Act"? 



Sir Charles Russell. — I have not, but my learned friends can place 

 it at our disposition. 



Mr. Phelps. — They have prize jurisdiction under the general judi- 

 ciary Act. 



Sir Charles Eussell. — I should like to see it. 



Mr. Phelps. — We will bring it in. 



Sir Charles Russell. — I began, early in my observations, by saying 

 I did not stop to consider the question whether or not a municipal Court 

 might or might not be constituted a Prize Court. My point here is that 

 it was not invoiced as a Prize Court; that no proceedings of any 

 851 kind which bear the faintest resemblance to proceedings in a prize 

 suit were instituted. It cannot be at one and the same time per- 

 forming the functions of a municipal Court and of an international 

 Court. The two positions are repugnant and inconsistent the one with 

 the other. In the one, the judge is administering the municipal law, 

 and in the other he shuts his eyes to the municii)al law and administers 

 international law and international law alone. 



Senator Morgan. — You say that you could not embrace both grounds 

 of forfeiture in the same Information. 



Sir Charles Russell. — Unquestionably that is my contention. 

 That is made clear if the Tribunal will bear with me a little longer, in 

 the same book, at page 479, where the point is further discussed. 



For the history and true limits of the jurisdiction of the English High Court of 

 Admiralty in prize cases, see Lord Mansfield's judgment in Undo\. Jlodney and another, 

 cited in a note to Le Caux v. Eden, Uouglas' Kei)orts, volume II, page 594. His lord- 

 ship distinguishes the functions of the judge of the court under his general com- 

 mission and those under a special commission issued only in time of war. This 

 distinction gives rise to the two aspects of the Court of Admiralty, that of an 

 ''instance" court and that of a " prize'' court. 



Tou will recollect I called attention yesterday t-o the language in rela- 

 tion to this particular Court which pointed to it being regarded as an 

 " Instance" Court and a Court of original jurisdiction. 



"The manner of proceeding", says Lord Mansfield, ''is totally different. The 

 whole system of litigation and jurisdictiou in the prize court is peculiar to itself; 

 it is no more like the Court of Admiralty than it is to any court in Westminster 

 Hall." By the Naval Prize Act of 1864, which recited that it was expedient to "enact 

 permanently, with amendments, such provisions concerning naval prize and matters 

 connected therewith as have heretofore been usually pas*sed at the beginning of a 

 war" the Higli Court of Admiralty has jurisdiction given it throughout Her Maj- 

 esty's dominions as a prize court^ aud an appeal is given to the Judicial Committee 

 of the Privy Council. 



I point out that that is very much like the case my learned friend 

 suggests; that this is a Court which has i^ower to act as a Prize Court 



