ORAL ARGUIMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 53 



Sir CiiAELES Russell. — I am quite aware that according to the Con- 

 stitution of the United States the Executive Government could not enter 

 into a Treaty without the authority and sanction of the Senate. 



But, Mr. President, 1 tliink we are indebted to Mr. Phelps for his 

 interposition and for his citation from this letter of Sir Julian Paunce- 

 fote, because it explains the meaning of the word "liability" as it is 

 used in that paragraph, and it will be found to have no relation what- 

 ever, for the reason 1 will give you in a moment, to the question of the 

 liability of the United States, if in point of fact the seizures were 

 unauthorized. 



You will observe that article YIII deals with claims which may be 

 made, either on the part of the United States or its citizens, or on the 

 part of Great Britain and its citizens. You will observe the distinction 

 at once between the two sets of claims. Once it is clear that the acts 

 which are complained of are done with the authority of the Executive 

 of the United States, it becomes the direct act of the United States: 

 there can be no question of the liability of the Government for those acts, 

 if tlie acts themselves cannot be justified; but, per contra^ the United 

 States were suggesting that they on behalf of themselves and their 

 citizens might make claims against the British Government in resi^ect 

 of acts done by individual merchant vessels belonging to subjects of 

 Great Britain — not public vessels belonging to the Executive, and not 

 in any way authorized by the Executive. The question raised therefore 

 was whether or not the British Government would be liable for the acts 

 of private citizens in the pursuit of pelagic sealing. Sir Julian Paunce- 

 fote says : 



We cannot admit as a principle of iuternatioual law that a Government is respon- 

 sible for what is done by a merchant ship that is bearing its flag, nnless that Govern- 

 ment has done something to adopt its act or taken the responsibility upon itself. 



Therefore he says, quoad the claim for damages against the Govern- 

 ment of Great Britain 1 am not prepared to admit that, even if it were 

 found that the merchant vessel had done something to the interest of 

 the United States or its citizens, which was without warrant of law, I 

 am not prepared to admit as a principle of international law that my 

 Government is ipso facto liable. That is a perfectly intelligible distinc- 

 tion; but it has no relation, no bearing, upon the other branch of liabil- 

 ity, namely, the liability of the United States for the acts done under 

 the direct authority of its executive power. I think the distinction is 

 now apparent; and I confess upon reflection that I think that Lord 

 Hannen was right in saying that as regards the word "liability", so far 

 as it concerns claims of Great Britain, it can not in this connection mean 

 anything except the amount of liability. 



Lord Hannen. — 1 did not intend to express a definite opinion. 



Sir Charles Russell. — No, no, my Lord ; I so understood. 

 783 In truth when one comes to look carefully at the matter, and my 

 friends are very candid, and I am sure will approach it in a can- 

 did spirit, how does the matter in fact stand? They have, a priori, in 

 setting out the questions in article V, set out the grounds upon which 

 they justify what they did. "We did what we did because we had rights 

 under our title from Russia to do it — We did what we did by reason of 

 our own inherent rights as owners of territory, and as owners of certain 

 alleged rights incident to territory." 



That is their justification for the seizures, and if that justification 

 fails, my learned friends must candidly admit that there is no other 

 justification. I do not care the least about the form of the thing. I 

 want to get at the substance. And if it is clear to the mind of the Tri- 



