ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 51 



Mr. Phelps. — We are not authorized to make any such statement, or 

 to give any such assurance. I am free to say, and I believe that to be 

 the view of my associates, that after a finding by the Tribunal upon the 

 five questions involved, it would not seem to me becoming on the part 

 of the United States, who have agreed to abide by this award, to contra- 

 dict the award when the question of its propriety arose upon this subor- 

 dinate matter of seizure; but it nnist be a question for those who control 

 the diplomatic relations of our Government, and is not a question that 

 we are authorised in reference to. 



The President. — That is all very well Mr. Phelps; but we have here 

 the United States before us in the persons of their Agent and Counsel, 

 and we have the right to ask them what is the authoritative and official 

 interpretation put by the United States upon one word used in an article 

 of a Treaty which limits our ])Owers. We have the right to ask you 

 what is the interpretation put by the United States upon those words 



"question of liability"? 

 780 Mr. Phelps. — That question the Tribunal is quite entitled to 



I)ut, and that question we are quite ready to answer. We have 

 endeavoured to answer it; — that in the discussion of questions under 

 article VIII the Tribunal is invested with no authority whatever except 

 to find the facts, leaving the legal consequences of those facts, so far as 

 these seizures are concerned for iuture consideration. 



Then if the Tribunal goes further, and asks me what that future con- 

 sideration on the paitof the United States Government would be, I 

 reply in the first place that I have no doubt that it ought to regard the 

 decision of the Tribunal as conclusive upon the questions arising under 

 this Treaty, but that I am not authorized to go beyond this arbitration 

 and the power with which the Tribunal is invested under this article, and 

 give an authoritative assurance as to what those in charge of the United 

 States Government when that time comes may do. The distinction may 

 be a refined one, but it is one that we feel compelled to make. 



The President. — We understand that very well. We merely wanted 

 to know what was your interpretation of these words " questions of 

 liability". We know the interpretation of the English Government. 



Mr. Phelps. — Our interpretation of that is, as I have said, that article 

 VIII simply provides for the finding of such facts — material facts of 

 course — as either party may desire to have found and may ofl'er suffi- 

 cient evidence in support of. What consequences shall come from that 

 finding is a point that it seems to us is not submitted to this Tribunal. 

 It will be for the alter consideration of the Government. But I should 

 not seriously doubt, when you ask my opinion, when those points come 

 to be considered hereafter by the United States Government, that the 

 decision of the Tribunal upon the first five questions will be respected 

 there as elsewhere. 



The President. — I think there is no objection to Sir Charles argu- 

 ing the question of fact, as he understands it. The court will consider 

 whether it is one of those facts which we have to decide upon. 



Mr. Phelps. — General Foster has put in my hands a paragraph in one 

 of the letters of Sir Julian Pauncefote to Mr. Wharton in the course of 

 the negotiation, dated August 26, 1891, while they were discussing this 

 eighth clause. It is on page 330 of the first volume of the Appendix to 

 the United States Case. 



He says : 



My Government arennable to acrept the form of clanso proposed by the President 

 becanse it appears to them, taken in connection with your note of the 23d ultimo, to 

 imply an admission on theix part of a doctrine respecting the liability of Govern- 



