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



the bottom of them they will be found really to be of very little help 

 indeed to this Tribunal. Now I will try shortly to explain what these 

 cases were. The case of Rose v. Himely was a claim to a cargo of coifee 

 and the then owner and possessor of the coffee claimed his title to it 

 under a foreign judgment of condemnation of a Court — of San Domingo, 

 which was French territory; and the main question discussed was 

 whetlierornot the American Court could go behind theforeign judgment 

 to examine the question of jurisdiction : wliether the facts as they existed 

 gave the Court jurisdiction to entertain the matter. Chief Justice Mar- 

 shall and three of his colleagues held that they were warranted in exam- 

 ining the question of the jurisdiction of the Court in relation to the 

 constitutional powers of the Court, and in relation to the situation of 

 the thing condemned; but the dissenting judge, Mr. Justice Johnson, 

 in a very elaborate and able judgment, dissented from those views and 

 came to the conclusiou that the principal judgment was not examinable 

 at all; and in the course of that judgment — indeed in the course 

 1176 of both judgments — a great deal of matter is gone into by both 

 of them a good way outside the particular point in hand. Chief 

 Justice Marshall's judgment is rather more closely, as it seems to me, 

 to the point; but Mr. Justice Johnson's, (whose judgment is found in 

 page 221 of the report of the case 4th volume of Cranch's Reports) 

 may be correctly summed up in this sentence: that there was no right 

 to inquire into the cause of capture or to review the judgment of the 

 Prize Court, but that if there were power to go behind, then he regarded 

 the seizure in the case in question as legitimately made and not as siu 

 enforcement of a municipal act, but as an assertion of a belligerent 

 right. That is the sum and substance of Rose v. Himely. 



In the case of Hudson v. Gvestier, the question came up again, and 

 upon substantially the same facts, because although it appears in one 

 part of the case of Hudson v. Guestier that the seizure was not made, 

 as iu Rose v. Himely, outside the three miles, but according to one 

 statement in Hudson v. Guestier was made within the three miles, yet 

 the Judges in their judgment treat the facts as if they were similar, 

 and nothing turns on the question whether it was inside or outside 

 three miles. 



Mr. Carter. — There were two trials. On the first trial it appears to 

 have been within the three miles, and on the second trial further out. 



Sir Charles Russell. — That very likely explains how it is vari- 

 ously stated as a seizure within, and a seizure without, the 3 mile limit. 

 However, the result of the case is what I desire to call attention to. 

 The result was that the Judges in that second case took the view which 

 Mr. Justice Johnson had taken in the first, namely that the foreign 

 judgment was not examinable. And therefore says Chief Justice Mar- 

 shall at the end of the case, "My judgment in Rose v. Himely is there- 

 fore to be taken as overruled." That is exactly the result. I hope my 

 friends will not differ from me about it, because we have examined it 

 with as much care as it is possible to bestow upon it, aud I think that 

 is really what it does come to. The passage I refer to in Hudson v. 

 Guestier is this — 



Senator Morgan. — Was it a prize Court in San Domingo? 



Sir Charles Russell. — Yes, it was a prize Court in San Domingo. 

 The other Judges, except the Chief Justice, concurred in the judgment 

 of Mr. Justice Livingston, whose judgment was appealed from and 

 which deals with the point whether the original judgment was examin- 

 able, and the Chief Justice observed that he had supposed that the 

 former opinion delivered in this case upon the point had been con- 

 curred iu by four Judges, but in this he was mistaken, and so on. 



