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



of the case, which went off as I have stated on other grounds, it did 

 intimate an opinion to the effect stated in my ar.niiuient. 1 have 

 marked the passage for the nse of my friend. I sui)po.sed it was not 

 here, bnt 1 found it was. 



The PiiiiSiDENT. — Perliaps you will prefer to keep the reading of this 

 passage for your own argument. 



Mr. Phelps. — Yes, unless my friends wish to read it for their own 

 purposes. 



Sir Charles Eussell. — I am perfectly willing to read it. 



Mr. Phelps. — [ do not ask them to read it. 



Sir Charles Eussell. — I care not; but it is not necessary for me 

 to stop at this moment. 



The President. — If it is not necessary to stop for the moment per- 

 haps you will leave Mr. Phelps to refer to it, and if he will be kind 

 enough to refer to it in his argument, we shall be glad. 



Lord Hannen. — Have you not read it? 



Sir Charles Eussell. — I had thought I read all, my Lord, that had 

 any bearing on the question — I read from the report that was given to 

 us — the report of Chief Justice Fuller's judgment. 



Mr. Justice Harlan. — I have no doubt the document you have there 

 is a correct report of the opinion. I thought you had the authority. 



Sir Charles Eussell. — That is how^ I read it. 



Mr. Justice Harlan. — I have no doubt it is accurate. 



Sir Charles Eussell. — I can find nothing to that effect: that is 

 all I can say. 



Sir John Thompson. — It strikes me. Sir Charles, that perhaps the 

 difference is in the interpretation of the judgment of the Court — not of 

 the argument of Mr. Phelps as contained in this book. Do you contro- 

 vert the version given by Mr. Phelps in this argument because you 

 conceive the solution to be a statement that the seizure of these ves- 

 sels w^as an executive act done in defence of the property in the fur- 

 seals, for if that is your interpretation of Mr. Phelps' argument, my 

 recollection of the "Sayward" case is that the judgment of the Court 

 did not justify that, but that the judgment of the court did establish 

 this position, in so far as it could establish anything by a dictum — that 

 what had been done in relation to the seizures of these vessels was an 

 executive act. 



Sir Charles Eussell. — Clearly so. 



Sir John Thompson.- Done in pursuance of an interpretation by 

 the Executive of its property riglits; and therefore, the judicial branch 

 of the Government would not interfere with this interpretation. 

 1051 Sir Charles Eussell. — I am very much obliged to Sir John 

 Thompson for this interposition, because of course my whole 

 argument goes to show that the condemnation of these ships was based 

 on the executive action of the United States invoking their municipal 

 law, and alleging that the extent of that municipal law, territorially 

 regarded, embraced the place where the ships were seized: and that 

 therefore they were subject to munici])al law, which exacted a certain 

 penalty for being engaged there in sealing. IJut that is not the propo- 

 sition which my learned friend has stated here — nothing like it. 



The President. — Mr. Phelps in his argument does not refer to the 

 judgment. He refers to the opinion. He says: "In the opinion it is 

 intimated". 



Sir Charles Eussell. — That means the judgment, Sir. 



Mr. Justice Harlan. — No. 



Sir Charles Eussell. — What does it mean then ? 



