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



Sir Charles Bussell. — I read the whole of it. 

 Mr. Phelps: 



by a United States cruiser and condemned by decree of the United States District 

 Court for violation of the regulations prescribed in those acts; and it was claimed 

 by the owners that the capture was uujustitiable as being an attempt to give etiect 

 to a mimiciiial statute outside the municipal jurisdiction. The case was disuiissed 

 because it was not properly before the Court. But in the opinion it is intimated 

 that if it had been necessary to decide the question, the capture would have been 

 regarded as an executive act in delence of national interest and not as the enforce- 

 ment of a statute beyond the limits of its effect. 



Now if iny learned frieud will take the trouble to read the passage in 

 the opinion which I have just marked and handed to Sir Richard 

 Webster, he will find that I have correctly stated the intimation of the 

 Court, as contained in the opinion, on the main question by which it 

 was able to dispose of the case. 



The President, — Do you mean to say that the passage you have 

 mentioned implies that the act of the Executive would have been 

 justified? 



Mr. Phelps. — No: it implies, in my judgment, that the Court would 

 have held, that being an executive act it was not subject to judicial 

 inquiry. 



Sir, Charles Eussell. — Oh! 



Mr. Phelps. — Not that they would liave undertaken to decide as 

 between Nations the diplomatic question, but that so far as the judicial 

 question was concerned the judgment of the Court below would have 

 been affirmed upon the merits, if the merits had been decided. 



The President. — But Mr. Phelps, in your Constitution 1 believe the 



acts of the Executive come under the judicial power? 



1053 Mr. Phelps. — Not as to foreign Nations. Sometimes, as 



between the Executive and the citizens, they are subject to review 



by the Courts; but, as between the Government and a foreign Nation, the 



judicial power has nothing whatever to do with questions of that sort. 



The President. — If the Executive does wrong, other foreign Nations 

 appeal to the judicial power, — is that Avhat you mean? 



Mr. Phelps. — If the Executive does wrong, — it is hardly for me to 

 argue it at this time, — it is a matter for adjustment between the two 

 Governments. 



The President. — I must say that somewhat alters my own view 

 about what was the action of your Constitution. 



Sir Charles K-ussell. — The President will see that that is a very 

 diHerent statement from the statement in the Case, because the state- 

 ment in the Case is that there was an intimation by the Court, if it had 

 been necessary to decide it, that the capture would have been regarded 

 as an executive act in defence of national interests. I respectfully say 

 that no su(;li opinion is intimated. 



My learned friend has now read the book which Mr. Phelps was good 

 enough to hand him, and whiohis exactly, my learned friend says ver- 

 hatim, the same as the judgment I read to you. I have now got it before 

 me; and I will read the passage. 



Before I read it, may I point out what the statement of my learned 

 friend now is, as to which I agree? What he says is this, that the 

 Legislature of the United States having by their Statute assumed terri- 

 torial jurisdiction over a certain area of the sea, and having by their 

 executive action put that Statute into operation, the" Judicial Tribunal 

 would not go behind what the Executive had done and what the Legis- 

 lature had done, but would recognize the fact that they had claimed 



