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



article VI of the Treaty, the question which we have called the ques- 

 tion of derivative right under llussia. I shall then consider question 

 5, to which tlie great stress of the argument of my learned friend has 

 been directed; and, following upon that examination I shall, asking for 

 the patience of this Tribunal, examine the cases that have been cited 

 and tlie propositions that have been based on those cases. And, tiually, 

 I shall ex.araine the analogies sought to be drawn from the legislation 

 of otlier Nations as afibrding some foundation for the contentions 

 advanced on the part of my learned friend Mr. Carter; especially I 

 shall examine the argument that in the analogy of that legislation of 

 other civilised countries is to be found some warrant for the suggestion 

 that international law sanctions such claims as are here advanced. 



THE SEIZURES OF THE BRITISH VESSELS. 



I begin, at once, with the question of the seizures. 



The President. — You spoke yesterday. Sir Charles, of introducing 



into the general plan of your argument the two difit'erent questions of 



damages: those with reference to the seizure, and those under the 



774 modus vivcndi. At which moment of j^our argument do you 



intend to bring those questions of damages in? 



Sir Charles Eussell. — At the conclusion of all questions of prin- 

 ciple. 



The President. — In the first part of your argument, before you enter 

 upon the liegulations? 



Sir Charles Russell. — Certainly. 



I was about to draw, as it is right I should, the attention of the Tri- 

 bunal to what its function is under Article VIII. Under Article VIII, 

 it is provided that 



The High Contracting Parties having found themselves nnahle to agree upon a ref- 

 erence which shall include the qnestion of the liability of each for the injuries alleged 

 to have been sustained by the other, or by its citizens, in connection with the claims 

 presented and urged by it ; and, being solicitous that this subordinate question should 

 not interrupt or longer delay the siibniission and determination of the main ques- 

 tions, do agree that either may submit to the Arbitrators any question of fact involved 

 in said claims, and ask for a finding thereon, the question of the liability of either 

 Government upon the facts found to be the subject of further negotiation. 



I should like the attention of my learned fi lends at this point for one 

 moment. We, I think, agree (it is so stated, I think, in both Cases) 

 that that does not involve the calling upon this Tribunal to deal with 

 aijy question of amount? 



Mr. Phelps. — It does not. 



Sir Charles Russell. — ISTo. We agree, therefore, that this Tri- 

 bunal will not be troubled to assess, as the technical phrase is, the 

 amount of damages. What the Tribunal will be asked to do is to find 

 any question of fact involved in the said claim; and, so 

 biutj^^iu Art.vin. f^i' ^s wc are concerned, the simple facts that we request 

 the Tribunal to find will be these. Two of them are undis- 

 puted; — first, the fact of the seizures; next, the fact that those seizures 

 were made with the authority of the Executive of the United States, — 

 neither of those facts is in dispute; and the only remaining one, there- 

 fore, which we shall ask the Tribunal to find is, that there was no war- 

 rant in law, in the circumstances of the case, for the seizure and 

 condemnation of those ships, or the imprisonment of their crews. 



Mr. Phelps. — We should not regard that as a fact, as it seems to be 

 a proposition of law. 



Sir Charles Russell. — But it must be found as a fact, though I 

 agree it involves a proposition of law. 



