ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 389 



^oods for the express purpose of smuggling them into the United 

 States in violation of its Eeveiiue Laws; would the language of Mr. 

 Marcy go to the extent that the United States could only seize that 

 vessel after it got within its territorial waters'? 



Sir Charles Russell. — Certainly, the language would; but the case 

 that you put is undoubtedly one of the most difficult cases that one has 

 to consider, — the most difficult. You have a vessel as to which you 

 have information such as you suggest, that she is coming to your 

 coasts for the express purpose of violating your laws, but is outside 

 your three mile limit. Are you to allow her to take the chance of dark- 

 ness on a coast imperfectly guarded and to run ashore her cargo in 

 boats in violation of your Eevenue Laws'? That is a question I have 

 had to consider, and it is one of enormous difficulty. If I may express 

 an opinion to which no value is to be attached, it would be i)robable in 

 such a ease, if the Executive Authority had clear and decisive infor- 

 mation of the character that you mention, she would probably do some- 

 thing before the vessel got within the three-mile limit, if it was proved 

 to be necessary, relying upon the non interference of the State to which 

 that fraudulent vessel belonged not to make any complaint or raise any 

 question whether the strict territorial limits had been exceeded. 



Mr. Justice Harlan. — Could a Court of the United States, sitting 

 in judgment on that act, proceed on that ground! 



Sir Charles Russell. — I am a little puzzled as to that point, 

 1187 because of some of the assertions made by the Supreme Court 

 Judges in the case of re ISayward. Undoubtedly there are some 

 expressions in those judgments, as there were in the judgment of the 

 Court below, which would seem to suggest a doubt whether, if the 

 Executive assert that they do an act under and with the authority 

 of a particular Statute, the Court will go beyond that assertion of 

 executive authority. As, for instance, suppose the executive authority 

 were to assert there was extra territorial jurisdiction, or to say it was 

 territory for the purpo.se of this executive act, — it seems to me doubt- 

 ful, from some of the expressions I read, whether the Judges of the 

 United States Court would consider themselves justified in goingbeyoud 

 the executive act to see if it was justified. Subject to that, if it came 

 up in an English Court, I think it would be — 



Mr. Justice Harlan. — Troublesome? 



Sir Charles Russell. — Yes, troublesome; quite so. 



The President. — In the case alluded to, if I understand it right, no 

 Statute was invoked. They merely spoke of the action of the Executive 

 without saying it was founded on a Statute. They said it was an action 

 of the Executive, and it was out of their power to control it. That is 

 what we call a separation of powers, and that is a little different from 

 invoking a Statute. 



Sir Charles Russell. — Quite so; and they also did another thing; 

 they said, this Act of Congress treats this as territory, and the Execu- 

 tive have invoked this Statute and put it in force as embracing and 

 including and applying to territory, and we cannot go beyond that. 



Mr. Justice Harlan. — The President having interpreted the Statute 

 by his act? 



Sir Charles Russell. — Yes. 



Now, I have very little more to read; and as I shall not occupy the 

 Tribunal very long to-morrow, perhaps I may be allowed to finish these 

 citations before the Court rises. I want to show the continuity and 

 consistency of these opinions. Mr. Cass, the Secretary of State, writes 

 to Mr. Dallas on February the 23rd, 1859, apropos of a discussion as to 



