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



Sir Charles Eussell. — Tes; and having similar laws of tlieir own. 



Mr. Justice Harlan. — Do you think the Courts of those countries, 

 which passed those laws, can in administering them proceed as a matter 

 of law upon that ground? 



Sir Charles Kussell. — I should hardly like to answer that ques- 

 tion, without consideration, unless you can refer me to some case where 

 the question has been raised in litigation. I know no case where the 

 Power, the ship of whose national has been seized, has interposed to 

 raise the question of jurisdiction. 



I do not wish to say anytliing with which my judgment does not go, 

 though, of course, I submit it not as matter of opinion but of argument; 

 but 1 think, as a matter of law, as a matter of strict right, it would be 

 exceedingly diiBeult to justify a seizure under a municipal Statute out- 

 side the limits of territory. This I can say; while I am not giviug up 

 any right which properly belongs to the Power I represent, as far as I 

 Know (and I have had means of enquiring into this matter), there is no 

 case, within a reasonable period of time from the present, in which any 

 seizure has been eifected under the Hovering Acts by Great Britain 

 which has been in any way challenged or brought into question: and 

 no seizure at all in recent years that I am able to trace, outside the terri- 

 torial limits. Whether the actual authority is greater does not matter; 

 I only state the fact that in recent time there has been no exercise of it. 



But see how far away we are from the subject that is before us. This 



is to be said in defence of the principle of the Hovering Acts, that they 



are directed against an offence against the Eevenue Laws of a 



1181 country to be completed on the territory of that country ; in other 



words, it is an offence which can be only consummated by coming 



within the territorial jurisdiction of the particular country. 



Senator Morgan. — That is not the case in regard to the Island of 

 Saint Helena. There the "Hovering Act" was for the protection of a 

 political right, not the Eevenue. 



Sir Charles Eussell. — I quite agree. If you ask me Senator (if 

 I may respectfully put it so) if I will undertake to defend, upon strict 

 legal principles, every act the Executive of the United States has done, 

 or the Executive of Great Britain has done, or the Executive of any 

 other great country has done, I decline the task. It is true that my 

 learned friend, Mr. Carter, was not appalled by it. He went the length of 

 defending various things done by various Powers, and satisfied himself 

 he could bring them all within a proper justification of ascertained legal 

 principles. 



Mr. Carter. — Well, it was not quite so broad as that. 



Sir Charles Eussell. — I thought so, and I hoped that my learned 

 friend was right in that. I confess I would not like to have that obli- 

 gation imposed ui)on me. 



The great i)oint which we are here contending for, and which is the 

 real point between us, is this; whether, in time of i)eace there is any 

 justification upon the ground that the ship of one nation has got hold 

 of a piece of property of another nation, — the right in time of peace, 

 and outside the territorial limits upon the high seas, — for the claim to 

 search that vessel, seize that vessel, bring it into a Prize Court, which 

 is in fact a war tribunal, and there condemn it? 



That is the question we are considering; and all these questions of 

 the Hovering Act assist us very little indeed in that direction. 



Senator Morgan. — That is a belligereut act that relates to a past 

 transaction. 



