ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 47 



Senator Morgan. — It fixes liability, does it not? 



Mr. Phelps. — Of course it does. 



Senator Morgan. — I understand the Treaty does not permit us to 

 fix liability upon either Government, and that would fix liability, would 

 it not? 



Sir Charles Eussell. — Not necessarily; I agree it would go a very 

 long way towards doing so. 



775 The President. — I think. Sir Charles, you must make your 

 distinction a little clearer. 



Senator Morgan. — It seems to me it goes the whole length. 



The President. — You must make it clear for us that it is not 

 liability. 



Sir Charles Eussell. — Well, you are not to say, " We thereupon 

 award and adjudge that the United States shall pay so much damages". 

 That would be the affirmation of liability; but you are asked to find the 

 facts as to whether the seizures occurred, as to whether they were done 

 with the authority of the United States, as to whether there was 

 any justification in law for them. I do not see how you can escape it; 

 and I think the passage which I am about to read shows that the view 

 of my learned friends was the same. You will see at page 217 of the 

 printed Argument of the United States, a sentence which makes the 

 matter clear. 



The claims suLmitted on the part of Greut Britain are for damages sustained by 

 certain of its subjects by reason of the seizure by the United States of certain ves- 

 sels alleged to belong to such subjects, and waruing certain British vessels engaged 

 in sealing not to enter Beriug Sea, and notifying certain other Bi-itish vessels engaged 

 in the capture of seals in Beriug Sea to leave said sea, whereby it is insisted that the 

 owners of such vessels sustained losses and damages, as set forth in the respective 

 claims. 



Now I call special attention to these next paragraphs: 



The right and authority of the United States to protect the seal herd, which has 

 its home in the Pribilof Islands, and in the exercise of such right to make reprisal 

 of seal-skins wrongfully taken, and to seize, and, if necessary, forfeit the vessels and 

 other property employed in such unlawful and destructive pursuit, is a necessary 

 incideut to the right asserted by the United States to an exclusive property interest 

 in said seals and the industry established at the sealeries. 



We, however, preface what we have to submit on this feature of the case by say- 

 ing that, if it shall be held by this tribunal that these seizures and interferences 

 with British vessels were wrong and unjustifiable under the laws and principles 

 applicable thereto, then it would not be becoming in our nation to contest those 

 claims, so far as they are just and within the fair amount of the damages actually 

 sustained by British subjects. 



I care not in what form it is put; but surely it is a question of fact, 

 aye or no, were the Canadian vessels exercising a right when they were 

 seized ; aye or no, was there, in point of fact or of law, any justification 

 for those seizures. I care not whether the result of those findings is or is 

 not necessary to land the United States in liability. If it be so, so much 

 the simpler the question of the settlement of those claims ; but it could 

 not have been intended, it would have been an absurdity to suggest that 

 this Tribunal was merely to find the fact that the vessels were seized, 

 and merely to find the fact, which no one has ever disputed, that those 

 seizures took place under the executive authority of the United States. 

 It would be idle to suggest that this Tribunal was called upon merely 

 to determine those facts about which there is no controversy; and it 

 will be observed that the language to which I have called atten- 



776 tion in Article VIII appears to give a right to either of these 

 parties, the United States on the one hand Great Britain on the 



other, to call upon the Tribunal to find any questions of fact involved 

 iu the said claims, 



