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



ical question, and t.liat the decision of the Executive and of tlie Con- 

 gress of tlie United States on tliat politic^al question is conclusive, not 

 only upon this Court but upon every citizen within the jurisdiction of 

 the country, because in determining' that ])olitical question the Execu- 

 tive is discharging his constitutional functions, and he, in the discharge 

 of that duty, is not an inferior tribunal whose decision may be reversed 

 by this Court." 



The Court will see that it could not have been present to the mind of 

 this learned gentleman thattheie was any ground put iorward suggest- 

 ing a defensibility of the judgment, except the ground of national terri- 

 torial jurisdiction, on which he aftirms are based the only rights put 

 forward by the United States, and which he says were the only rights 

 that were acquired from liussia by the United States. The Attorney- 

 General follows, but follows briefly upon the same lines; and I turn to 

 the judgment, and (Mr. Justice Harlan will correct me if I am wrong 

 about this) I take the efi'ect of the judgment ultimately to be this; that 

 the Court thought that it was not a case in which a Prohibition lay; 

 that they came to the conclusion that the Eecord had been so imper- 

 fectly made up that even if jurisdiction did not extend beyond 3 miles, 

 yet non constat, as far as the Eecord as made up appeared, the oftence 

 may not have been committed within 3 miles. 



Mr. Justice Harlan. — I really do not recall enough of it to say 

 whether you are correct or not. Have you the oi)inion of the CourtI 



Sir Charles Eussell. — Yes; I have it before me. 



I do not know if the other Members of the Court appreciate what I 

 am upon. Jurisdiction in prohibition is a peculiar thing. It is difdcult 

 to put prohibition in force after the judgment has passed. The point 

 resolves itself into a question whether the Court had any jurisdiction; 

 and, if it had any jurisdiction, then the remedy if the Court has gone 

 wrong is not prohibition, but appeal. If it had jurisdiction, you cannot 

 prohibit; and the Court came to the conclusion, from the Eecord 

 866 put before them, imijerfectly and very badly made up it would 

 appear, that it did not appear that the seizure might not have 

 been within the 3-mile limit, and, therefore, proi)erly within the jurisdic- 

 tion, as internationally recognized, of the municipal Courts. 



But that is not the point I am upon, which is the recognition by the 

 Court of the argument of the Solicitor- General on the broad grounds on 

 which the United States assumed to justify their action. The judgment 

 is on page 16 of the OfiBcial Eeport — 



Mr. Justice Harlan. — That is the opinion of the Chief Justice? 



Sir Charles Eussell. — Yes. 



If we assume that tlie record shows the locality of the alleged offence and seizure 

 as stated, it also shows that officers of the United States, acting under the orders of 

 their Government, seized this vessel engaged in catching seal and took her into the 

 nearest port, and that the law officers of the government libelled her and proceeded 

 against her for the violation of the laws of the United States, in the District Court, 

 resulting in her condemnation? 



How did it happen that the officers received such orders? It must he admitted 

 that they were given in the assertion on the part of this government of territorial 

 jurisdiction over Behring Sea to an extent exceeding fifty -nine miles from the shores 

 of Alaska; that this territorial jurisdiction, in the enforcement of the laws protect- 

 ing seal fisheries, was asserted i)y actual seiziires during the seasons of 1886, 1887, 

 and 1889, of a number of British vessels ; that the government persistently maintains 

 that such jurisdiction belongs to it, based not only on the pecialiar nature of the seal 

 fisheries and the property of the government in them, but also upon the position 

 that this jurisdiction was asserted by Russia for more than 90 years, and by that 

 government transferred to the United States; and that negotiations are pending 

 upon the subject. 



