274 OKAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



it was claimed hy tbe owners that the capture was nnjnstifiahle, as being an attempt 

 to give ett'ect to a miiiii('ii)al statute outside the uiuuicii)al juribdictiou. Tlic case 

 Avas dismissed because it was not properly before the court. ])Ut iu the opiuiou it 

 is intimated that it it had beeu necessary to decide the questi<m the cajjture would 

 have beeu regarded as au executive act in defense of national interests, .and not as 

 the enforcement of a statute beyond the limits of its eli'ect. 



I have already read the judgment to tbe Court. 



Mr. Phelps, — Perhaps I might say that the number of the Volume 

 in which the case is to be found is misquoted by a printer's error. Per- 

 haps, Sir Charles, you have noticed that. 

 1048 Sir Charles Eussell. — 1 have, thank you, — 143 is the right 

 Volume. 



Mr. Phelps. — Yes. 



Sir Charles Eussell. — I have read that case, and I beg to say 

 that this statement, as I read that case, is quite incorrect — in fact, one 

 of the Judges is here, and he will no doubt tell the Court; but we have 

 the authentic record. It would indeed be a very extraordinary thing if 

 the Court had attempted to say any such thing. It would indeed be 

 an extraordinary thing for the Judges of the Supreme Court, or indeed 

 of any Court, under tbe circumstances in which the matter was pre- 

 sented to them, to have attem])ted to express an opinion upon so 

 weighty a subject which was not before them, because, when I was dis- 

 cussing the action of the United States Government in relation to the 

 seizures, I pointed to the judgment of the Court condemning the ship 

 and imprisoning the men : and I pointed to the argument of the Solicitor 

 General to the United States, Mr. Taft, in the Supreme Court of Wash- 

 ington : and I showed how the case was put on one ground and one 

 ground only; namely that of exclusive jurisdiction based upon the 

 territorial effect given to the municipal Statute. There was no sug- 

 gestion in the libel in the case, or in any i)art of the record before the 

 Court, of the justification now suggested for the seizures as an execu- 

 tive act of self-preservation or self-defence; and therefore it would have 

 been indeed an amazing thing if Judges of the eminence and position 

 of those learned Judges had stepped asi<le from the case presented to 

 them to express or intimate in the faintest degree an opinion on a point 

 which was not before them, or argued before them, or even suggested 

 before them. 



The President. — Perhaps you might read us the passage from that 

 opinion. 



Sir Charles Russell. — If my learned friends will kindly give it 

 to me, I will read it at once. 



Mr. Phelps. — We have not got it here this morning. 



We will bring tlie volume of the Supreme Court, N" 143. 



Sir Charles Kussell. — I read the case with some care, and I found 

 no such thing iii the judgment. It is conceivable that I may have over- 

 looked some passage in it, but my friend Sir Richard Webster has read 

 it as well as myself, and we think there is no warrant for that statement 

 at all. 



Lord Hannen. — If it were, it would be only what we call obiter dicta. 



Sir Charles Russell. — There is not even that. 



Mr. Phelps. — That is all I claim for it. 



Sir Charles Russell. — I should have referred to it if it had 

 existed, but I do not find even an obiter dictum. 



The Presidpint. — If we can have the proper wording of that opinion, 

 it would be better — at a later stage perhaps. 



Sir Charles Russell. — Yes, I sboitld be glad. — But as Lord Han- 

 nen has been good enough to intimate (and Mr. Justice Harlan I am 



