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



bunal tliat tlio two questions haug, together, in the sense that if the 

 questions of riglit are decided adversely to the United States, then 

 there can be no justification for tlie seizures and there must be conse- 

 quent liability for the seizures, I care not in what form of mere words 

 that result is arrived at. 



But let me finally say that this matter really is concluded from the 

 point of view of the United States by what the}' themselves have said. 

 What is the meaning of what Mr. Foster sa3's in his very carefully pre- 

 pared Counter Case on behalf of the United States? He can only 

 mean one thing when he says at the bottom of page 134: 



The United States do not deem it necessary to state iu detail wherein the valua- 

 tions and damages claimed are excessive and exaggerated, or submit proofs in relation 

 thereto, further than by the analysis of said claims found in the Appendix . , . for th© 

 reason that the "questions of fact involved in the claim" of either of the parties to 

 the Treaty against the other, to be submitted to the Tribunal of Arbitration under 

 the provisions of Article VIII, should as this article is understood by the United 

 States, have relation only to such facts as tend to fix the liability of one party to the 

 other, and do not include facts which only relate to the amounts of such claims. 



Mr. Justice Harlan. — Do you understand that to be an admission 

 that we are to find not only such facts, but also on the question of legal 

 responsibility arising out of those facts? 



Sir Charles Eussell. — These are largely mixed questions of fact 

 and law. I think the true meaning — as the Judge is good enough to 

 ask me the question, and I think he is entitled to a direct answer — 

 I think the true meaning of Article VIII is simply this: That this Tri- 

 bunal is not to have authority to award judgment in damages against 

 the United States; that it is not to have authority to order the United 

 States to pay any sum, much less to fix any sum ; but that it has the 

 authority and obligation to find the facts, whether they are x>artly law 

 or partly fact. Let me point out that it is quite a mistake to suppose 

 that this international Tribunal in affirming propositions of law is aflBrm- 

 ing propositions of law in the same sense in which a municipal Tribunal 

 would affirm them. Foreign law is a question of fact. If Mr. Justice 

 Harlan, sitting in his Supreme Court in Washington had to determine 

 a question of English law, he would have to determine that, not 

 784 as a question of law, but as a question of fact. So as regards 

 any other law which is foreign to the Tribunal before which it 

 comes in question; and as regards our view of this matter it will be 

 found that municipal law has a very important j)art to play in the 

 consideration of this question. 



Mr. Justice Haklan. — May I ask you again, that I may get your 

 exact idea — Sui)pose in reference to a particular vessel we should find 

 that it was seized at a particular time and at a particular place, having 

 previously found, let me assume for the purposes of the question, that 

 the United States has no property in the seals and no right of protec- 

 tion. Do you insist that we should further find as a fact in the case 

 that the seizures were wrong? 



Sir Charles Eussell. — ^If no other justification was shown I should! 

 say, Yes. 



Mr. Justice Harlan. — What then is left for future negotiation? 



Sir Charles Eussell. — The question of amount. 



Mr. Justice Harlan. — Only of amount? 



Sir Charles Eussell. — The question of amount, and a little more 

 than amount: a question of amount, speaking of the matter in gross; 

 a question of liability as regards items of that amount, as for instance 

 the question of whether the claimants put forward are entitled to claim — 

 whether they are United States citizens. Again, the question of the 

 principle upon which the claim is to be assessed, the question raised 



