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



times, the right to make seizures beyoml such waters has been insisted upon against 

 the remonstianee of foreign States, or that a clear and unequivocal judicial precedent 

 now stands sustaining such seizures, when the question of jurisdiction has been 

 presented. The Revenue Laws of the United States, for instance, provide that if a 

 vessel bound to a port in the United States shall, except for necessity, unload cargo 

 within 4 leagues of the coast, and before coming to the proper port for entry and 

 unloading, and receiving permission to do so, the cargo forfeit, and the master incurs 

 a penalty (Act of the 2nd March, 1797, ^ 27); but the Statute does not authorize a 

 seizure of a foreign vessel, when be,\ond the territorial jurisdiction. The Statute 

 may well be construed to mean only that of a foreign vessel, coming to an American 

 port, and there seized for a violation of Revenue Regulations coumiitted out of the 

 jurisdiction of the United States, may be confiscated; but that, to complete the 

 forfeiture, it is essential that the vessel shall be bound to, and shall come within, the 

 territory of the United States, after the prohibited act. The act done beyond the 

 jurisdiction is assumed to be part of an attempt to violate the Revenue Laws within 

 the jurisdiction. Under the previous sections of that Act, it is made the duty of 

 revenue officers to board all vessels, for the purpose of examining their papers, within 

 4 leagues of the coast. If foreign vessels have been boarded and seized on the high 

 eea, and have been adjudged guilty, and their Governments have not objected, it is 

 probably either because they were not appealed to, or have acquiesced in the par- 

 ticular instance, from motives of comity. 



The cases cited in the authors's note do not necessarily and strictly sustain the 

 position taken in the text. In the "Louis" (Dodson, ii, 245) the arrest was held 

 unjustified, because made in time of peace for a violation of municipal law beyond 

 territorial waters. The words of Sir William Scott, on pp. 245 and 246, with reference 

 to the Hovering Acts, are only illustrative of the admitted rule, that neighbouring 

 waters are territorial; and he does not say, even as an obHer dictum, that the terri- 

 tory for revenue purposes extends beyond that claimed for other purposes. On the 

 contrary, he says that an inquiry for "fiscal or defensive purposes near the co;ist, but 

 beyond the marine le.igue, as under the Ilovcaing Laws of Great Britain and the 

 United States, "has nothing in common with the right of visitation and se:irch upon 

 the unappropriated parts of the ocean"; and adds, "a recent Swedish claim of 

 examination on the high seas, though confined to foreign ships bound to Swedish 

 ports, and accom])auie(i, in a manner not very consistent or intelligible, with a dis- 

 claimer of all rights of visitation, was resisted by the British Government, and was 

 finally withdrawn". Church v. Hubbard (Cranch, ii, 187), was an action on a policy 

 of insurance, in which there was an exception of risks of illicit trade with the 

 Portuguese. The voyage was for such an illicit trade, and the vessel, in pursuance 

 of that purpose, came to anchor within about 4 leagues of the Portuguese coast; 

 and the master went on shore on business, where he was arrested, and the vessel was 

 afterwards seized at her anchorage and condemned. The owner sought to recover 

 for the condemnation. The Court held that it was not necessary for the defendants 

 to prove an illicit trade begun, but only that the risks excluded were incurred by 

 the prosecution of such a voyage. It is true that Chief Justice Marshall admitted 

 the right of a nation to secure itself against intended violations of its laws by 

 seizures made within reasonable limits,"as to which, he said nations must exercise 

 comity and concession, and the exact extent of which was not settled; and in the 

 case before the Court, the 4 leagues were not treated as rendering the seizure illegal. 

 This remark must now be treated as an unwarranted admission. The result of the 

 decision is, that the Court did not undertake to pronounce judicially in a suit on a 

 private contract; that a seizure of an American vessel, made at 4 leagues, by a 

 foreign Power, was void and a mere trespass. In the subsequent case of Rose v. 

 Himeley (Cranch, iv, 241), where a vessel was seized 10 leagues from the French 

 coast, and taken to a Spanish port, and condemned in a French Tribunal under 

 municipal and not belligerent law, the Court held that any seizures for 

 1179 municipal jnirposes beyond the territory of the Sovereign are invalid; assum- 

 ing, perhaps, that 10 leagues must be beyond the territorial limits for all 

 purposes. 



In Hudson v. Guestier (Cranch, iv, 293) where it was agreed that the seizure was 

 municipal, and was made within a league of the French coast, the majority of the 

 Court held that the jurisdiction to make a decree of forfeiture was not lost by the 

 fact that the vessel was never taken into a French port, if possession of her was 

 retained, though in a foreign port. 



The judgment being set aside and a new trial ordered, the case came up again, and 

 is reported in Cranch, vi, 359. At the new trial the place of seizure was disputed, 

 and the .Judge instructed the jury that a municipal seizure made within 6 leagues 

 of the French coast was valid, and gave a good title to the defendant. The jury 

 found a general verdict for the defendant;, and exceptions were taken to the instruc- 

 tions. The Supreme Court sustained the verdict, not, however, upon the ground that 

 la municipal seizure made at 6 leagues from the coast was valid, but on the ground 



