52 ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 



ments for the acts of their nationals or other persons sailing under their flag on 

 the high seas which is not warrauted by international law and to which they cannot 

 subscribe. 



I need hardly say that the discussion of such a point (which, after all, may never 

 arise) must prolong the negotiations indefinitely. Moreover, it seems premature to 

 enter into such a discussion before the other questions to be submitted to the Arbitra- 

 tors have been determined and all the facts on which any liability can arise have been 

 ascertained. 



781 I will read a little tiirther down, with the permission of the 

 Court. Sir Julian's suggestiou of the form of this article shows 



what was in the mind of the British Government. On the same page 

 and further down in the same letter he proposes this clause: 



Either of the two Governments may submit to the Arbitrators any question of fact 

 which it may wish to put before them in reference to the claims for compensation 

 which it believes itself or its nationals to possess against the other. 



The question whether or not, and to what extent, those facts, as determined by the 

 Arbitrators and taken in connection with their decision upon the other questions sub- 

 mitted to them, render such claims valid according to the priuciples of international 

 law shall be a matter of subsequent negotiations, and may, if the two powers agree, 

 be referred, in whole or in part, to the Arbitrators. 



Sir Juliaii says : " I do not propose the above wordiug as definite; it should be open 

 to amendment on either side; but if after submitting ", etc. 



The remainder is not material. 



That shows that the idea of the British Government as expressed by 

 Sir Julian Pauncefote then was precisely what I have endeavoured to 

 state as our idea now, and I think there is nothing in the correspond- 

 ence that will show that that idea was changed or that the language 

 of the Treaty was modified so as to prevent any different meaning from 

 what was there expressed. That is to say, that so far as the seizures 

 are concerned the arbitrators simply find the facts, leaving the whole 

 subject then for future negotiation; and therefore, charged as we are, 

 authorized as we are, only with the representation of the Government 

 before this Tribunal upon the points submitted by the Treaty, we are 

 not authorized without communicating with our Government to go any 

 further than that by giving an assurance about further negotiations. 

 At the same time, as I have said, I should not hesitate to express my 

 opinion as to what the result of the finding would probably be on the 

 action of those who represent our Government. 



Lord Hannen. — You will observe, Mr. Phelps, that Sir Julian Paunce- 

 fote uses an expression the equivalent of one which I have used. He 

 says: "Findings of fact are to be taken in connection with the determi- 

 nation of the Tribunal upon questions of principle ". I used the expres- 

 sion : If they were to be one tacked on to the other that would be suflB- 

 cient, supposing it were an authoritative statement. 



Mr. Phelps. — That exi)ression, however, your Lordship, is just the 

 one which was left out of that article when it was put into the treaty. 



Senator Morgan. — Sir Charles, before you proceed I would like to 

 say this : The President of the United States can pledge his Government 

 diplomatically to entertain or enter into a future negotiation. I have no 

 doubt of that ; but neither the President nor any of his agents can pledge 

 the Government to any particular result of a future negotiation, for the 

 reason that another body has to come in and, by a two-thirds vote, 

 ratify and confirm any negotiation before it can become any part of 

 the supreme law. Therefore the counsel here, though they might be 

 expressly authorized by the President to make pledges to this 



782 Tribunal, could not possibly commit the American Government, 

 under its Constitution, by agreeing that a pledge should be exe- 

 cuted in the form which they might state. It is a peculiarity of our 

 Government that ijrevents that result. 



