ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 299 



to, tlie nation has, in order to compel assent, the resort to force alone — 

 which is war. Bat I would like to say one thing, as I have drawn 

 attention to this, although it is not strictly to the point upon whicli I 

 am, but it is nevertheless sufficiently ad rem to justify my now alluding 

 to it. You will observe that in this paragraph my friend Mr. Phelps 

 has recognized that the territory is the limit within which a municipal 

 statute operates; and, therefore, he provides for the case of the United 

 States failing to establish territorial dominion, or territory over the area 

 to which their statutes have been adjudged to apply, and he is in effect 

 saying that, although qua statute it has no operation outside the terri- 

 tory, yet failing operation outside the territory it becomes a good, 

 effective, defensive regulation. 



Now 1 have, ni)on that, to make two observations. I have to ask in 

 the first place: Is there any precedent in any book of authority or in 

 any international controversy in which a statute assuming to 

 1078 exercise authority over a territorial area has ever been regarded 

 as a jirotective or self defensive regulation'? That is the first 

 question to which I would invite, when the proper time comes, my learned 

 friend's answer — Is there any such case? I^ay, I will suggest further 

 that the very idea of defensive regulation, or defensive act, or self- 

 preservative act, repels the idea of cut and dried, formulated rules'? 

 The occasions for acts of self-defence, or self-preservation, are occasions 

 of emergency — sudden emergency — occasions when there is no time (to 

 use the expressive language of an eminent Statesman of the United 

 States, to which I shall hereafter refer), — when there is no time for 

 deliberation, no time for contrivance, no time for warning, no time for 

 diplomatic expostulation. That is the very idea at the bottom of all 

 these exceptional acts of self-defence or self-preservation. But to say 

 that a statute which fixes its own penalties, including imprisonment, 

 and which is applied and intended to apply territorially, that is, within 

 the dominion, is to be regarded, when the occasion of the State requires 

 the argument to be turned that way, as a defensive regulation applica- 

 ble to the case of emergency, or falling within the principle of acts of 

 self-preservation, is, as far as I know, entirely and absolutely without 

 any kind of authority. 



Besides, let me remind you of a further difficulty, as I have touched 

 upon this point. The very constitution of an international Court implies 

 that there is a question to be settled upon international principles — 

 ujwn the principle that the Court is not the Court of the captor only, 

 but a Court which is charged with the care of, and thfe just adjudication 

 upon, matters affecting the rights of all nations, entirely and wholly 

 apart from the municipal law; and one of the first things which the 

 Judge of such a court would be called upon to consider would be the 

 circumstances of the case, the character of the emergency, and the char- 

 acter of the sanction which by international law would follow upon the 

 act done if it were not justified by the circumstances of the case. But 

 here is a cut and dried statute, which tells the Judge that the conse- 

 quences of the act on which he has to adjudicate are confiscation of the 

 ship, imprisonment of the men — imprisonment not exceeding a definite 

 term — or imi)osition of a fine not exceeding a definite amount. This 

 argument of self-defensive regulation is an ingenious afterthought: 

 creditable to the subtlety of the minds which have invented it, but not 

 a defence which was present to their minds when this question was 

 diplomatically in controversy between Great Britain and the United 

 States. 



