ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 277 



Mr. Justice Harlan. — The judgment of the Court is something dif- 

 ferent from the opinion of the Court. 



Lord Hannen. — But when you si)eak of the opinion of the Court 

 that commonly, Avitli us, means the judgment. 



Sir EiCHARD Webster. — The reasoned judgment. 



Mr. .Justice Harlan. — It is not always the case in America. An 

 opinion is often separate from a judgment, but as a general rule you 

 find, in the opinion, all that is essential to the formal judgment. That 

 is added as a record of the Court, and you refer to the opinion for the 

 ])urpose of interpreting the mind of the Court on the question 

 submitted. 



►Sir Charles Russell. — The matter stands in America, and in 

 England, upon i)recisely the same ground. A judgment, i)roperIy so 

 called, is the result of the opinion arrived at by the Court. 



Lord Hannen. — And is a formal thing, drawn up by some officer of 

 the Court. 



Sir Charles Russell. — Yes: "Judgment for the Plaintiff"; "Judg- 

 ment for the Defendant" — that, technically, is the judgment; but the 

 opinion is the reasoning of the Court upon which the technical judg- 

 ment is based, and that opinion is called, in England, the judgment of 

 the Court, and is cited as the judgment of the Court, and I think it is 

 the same in America. 



The President. — Is it considered to have the same authority as the 

 judgment itself"? — That is, in France, would it not be what we call Les 

 Considerants f 



WJiat you call the "opinion" that precedes the judgment and justi- 

 fies the judgment, is of no judicial authority; it is merely a moral 

 authority. 



Lord Hannen. — It is, that the Court for the reasons given, has deliv- 

 ered such a judgment. 



Sir Charles Russell. — May I point out the difference Mr. Presi- 

 dent? The mere judgment, (if it were to be restricted to the technical 

 verdict for the plaintiff, or judgment for the plaintili', or judgment for 

 the defendant), would be no authority at all except as between 

 1052 those two litigants; it is the opinion or the reasons, upon which 

 that result has been arrived at, which is the authority cited for 

 the guidance of future Courts of co ordinate jurisdiction; and, if it be 

 the judgment of a Superior Court, for the control of Courts of inferior 

 jurisdiction. 



]Mr. Justice Harlan. — The opinion is the authority — is a precedent 

 in future cases, according to the inquiry whether the Court in so talk- 

 ing kc])t within the case? That is the point. 



Sir Charles Russell. — I quite agree. 



Lord Hannen. — Whatever leads up to the judgment is properly 

 referred to as part of the opinion which is binding in the future; that 

 which does not lead up to it, is not referred to as binding, but is simply, 

 (to use a i)hrase which has been already used) the obiter dicta. 



Mr. Phelps. — If my friend will allow me it may be well that the 

 Tribunal should understand precisely what I have undertaken to say 

 in my argument. 



Sir Charles Russell. — To what page do you refer? 



Mr. Phelps. — ^The last words on page 149. Referring to the " Say- 

 ward" case I say:* 



In that case a Canadian vessel had heen captured on the high sea by a United 

 States cruiser — 



