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



of the United States or of Great Biitain to pay any amonnt, -vrliether 

 found by the Tribnnal or not, in respect of those facts, would be left an 

 open question. The material facts as to the seizure of these vessels 

 would seem to me to be these: What vessels were seized? Did they 

 belong- to British subjects? Where were they seized? Was any claim 

 made as a ground ibr seizure, except that they were engaged in the 

 taking- of seals? Such facts as that, from which, when found, might be 

 deduced well enough the answer to the question whether upon those 

 facts the United States ought to pay or not. 



Lord Hannen. — Well, that is the whole question over again, and all 

 this Arbitration would go for nothing-. 



Mr. Phelps. — Kot necessarily. 



Mr. Justice Harlan. — Suppose this Tribunal should decide under 

 the i)oints in Article VI, tliat the United States had or had not any 

 right of property in the seals, and had or had not a right to protect them 

 on the high seas, you would consider the United States bound by that 

 ruling- when the two nations, if the occasion arose, got together in 

 negotiations on the question of damages. 



Mr. Phelps. — I should, Sir, if you put that question to me at this 

 time. 



Mr. Justice Harlan. — That is what I understand Lord Hanneu's 

 question to embrace. 



Mr. Phelps. — If that is the purport of the enquiry, Yes. I do not 

 suppose for instance that if this Tribunal should decide that the United 

 States had no right of property, and no right of yjrotection, and that 

 under the circumstances vessels were seized belonging to British 

 779 subjects, I do not understand that it would be open to the United 

 States after that to insist that there was a right of seizure, and 

 a right of protection, in the face of the decision of the Tribunal. 



Lord Hannen. — I am bound to say that, assuming that that may be 

 taken as authoritative, it would meet my question. 



The President. — And in that case the liability spoken of in Article 

 VIII would merely refer to the question of indemnity, and theu there 

 would be no disagreement. 



Mr. Phelps. — That question, as it seems to me, which was put by 

 his Lordship refers rather to the inference that the United States Gov- 

 ernment would feel itself bound to draw in respect of the seizure from 

 the decision of the points of law in respect to the other branches of the 

 case. 



Lord Hannen. — Yes. The object of my enquiry would be completely 

 met if it can be taken as authoritative. We will assume for a moment 

 that the finding would be no property. If that can be tacked on to 

 the finding of tacts as to the seizure, then that would meet that which 

 Sir Charles has been asking for, a finding thaf it was an illegal seizure; 

 and, if so, I presume that would satisfy his requirement, as undoubtedly 

 it would meet the view which I intended to indicate in the question I 

 jjut to you. 



Mr. Phelps. — Your Lordship will see that if you ask the opinion of 

 the Counsel of the United States what would be the just and right 

 course for the United States Government to pursue in the future nego- 

 tiations if such were the finding of the Tribunal, our answer might be 

 one way. If you ask us if we are authorised here to bind the United 

 States to any conclusion in future negotiations, we must answer that we 

 have no such authority and have no right to make a declaration that 

 would bind them. 



Lord Hannen. — That is why I put in the word " authoritative". 



