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



I cannot see any question of fact more directly involved in this claim 

 than the question what tbese Canadian vessels were engaged in when 

 they were seized, or when they were interfered with — whether they 

 were exercising a right, whether they were committing a wrong, whether 

 the United States had the warrant of law, or whether it was a lawless 

 interference and lawless arrest. 



Mr, Phelps. — Perhaps 1 may suggest to my learned friend one very 

 serious question of fact as it seems to me, as to whether some of these 

 vessels were the property of British subjects at all. 



Sir Charles Kussell. — I am exceedingly obliged to my learned 

 friend for that illustration. It would be a question of fact which might 

 or might not be submitted to this Tribunal; we do not seek to disturb 

 or embarrass the Tribunal; if there be any real dispute of that kind, 

 we are quite willing- to leave it entirely an open question. 



The President. — That question will perhaps be rather raised by you 

 Mr. Phelps than by the other side. 



Mr. Phelps. — It has been raised in our argument. We do not care 

 to discuss it if the Counsel on the other side do not. It is a fact they 

 may or may not ask the Tribunal to decide. If they do, we dispute it. 

 If they do not we have nothing to say. 



Sir Charles Russell. — I am obliged to my learned friend for his 

 interposition, because I think it throws some light upon the matter. 

 The finding that the vessels, the names of which appear in the case, 

 have been seized and seized while exercising a legal right would not 

 conclude the liability of the United States to pay if, for instance, it 

 turned out that some of those vessels were owned by citizens of the 

 United States and subject to the laws of the United States. 



Lord Hannen. — Would not that be one of the facts which we might 

 be properly called upon to determine? 



Sir Charles Eussell. — Undoubtedly, my Lord; I have said so; it 

 might be; but it is a fact that as far as I know at present — I have not 

 referred to Mr. Tupper, the Canadian Agent, to have his view in the 

 matter — but so far I have no reason to suppose that that is a matter 

 that we should care to press this Tribunal to embarrass itself with at 

 all; but I shall answer that question at a later stage. For the present, 

 I am content to say that the questions of fact which I submit the Tri- 

 bunal ought to find are these — the fact of the seizures, which is not dis- 

 puted: the fact that those seizures were made with the authority of the 

 United States Government: and the fact that the vessels so seized were 

 exercising a right upon the high seas: and finally, the fact, in any 

 form in which it is desired to be couched — I care not what — that there 

 was no warrant in law on the part of the United States for those 

 seizures. I beg to say that the view which I am now presenting 

 777 is the view presented in the passage from the United States Argu- 

 ment to which I have already drawn your attention, and which 

 is also in the United States Counter Case. 



Lord Hannen. — Does not your contention amount to this, that the 

 question of the liability referred to in the 8th Article means the ques- 

 tion of the amount of liability'? 



Sir Charles Russell.— Well, that is one view, but I confess I think 

 the word is more general. I confess the word "liability" is not nar- 

 rowed, I must say, to the question of amount merely. I think the word 

 "liability" has a wider significance. 



Lord Hannen. — Would not your contention limit it to that sense f 

 You say we are confined to whether it was done wrongfully. 



