ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 55 



by my friend Mr. Coudert as to |)rosj)ective loss from the nou-employment 

 of the vessels, and questions of that kind — every question short of the 

 affirmation of a judgment to pay is what the Tribunal is called upon 

 as against the United States to affirm under Article Vlli. That is my 

 contention. 



Mr. Gram. — Will you allow me to ask you a question. Was the inser- 

 tion of this final sentence which commences with the words, "The ques- 

 tion of liability of the Government", etc., "due to the observations of 

 Sir Julian Pauncefote in his note cited at page 330? 



Sir Charles Russell. — My impression is, sir, as far as I can form 

 a judgment, that it probably was in consequence of that statement of 

 Sir Julian Pauncefote; and I have endeavored to explain how in con- 

 nection with the claim against Great Britain that word would be very 

 properly used. 



The President, — So that we would have to find on no question of 

 fact except as to the amount of the liability'? 



Sir Charles Kussell. — Practically, in my judgment, it comes to 

 that. 



The President. — And that is the way in which you ask us to construe 

 the article. 



Sir Charles Russell. — I am not calling- upon you to say that in 

 express terms; but I say that it practically comes to that. 



The President. — And that is the same interpretation you put upon 

 the passage you just read from the United States Counter Case? 

 785 Sir Charles Russell. — Certainly. I think there is no other 



interpretation that can be put upon it. I will endeavor to formu- 

 late in precise language, and put in writing, so that they may be quite 

 under the eye and clearly within the cognizance of the Tribunal, the 

 findings that we should ask you to make. I should have thought that 

 my learned friends and myself, — if they had authority corresponding to 

 the authority that I as a law officer of tlie Crown have a right to exer- 

 cise — I should have thought that we could together have determined 

 that as regards these questions of whether the ships were American 

 ships, the circumstances under which they were seized, the places, etc., 

 they are matters with which this Tribunal ought not to be troubled. 

 We are asking this Tribunal to affirm great i)rincii)les, not to go into 

 these details; and I should have hoped that before this discussion has 

 closed, communication will have been made, if necessary, with the 

 executive of the United States, iu order that this matter may be 

 removed from the area of controversy. There ought to be no real 

 dispute between us on this matter. 



Senator Morgan. — The Executive cannot remove it. 



Sir Charles Russell. — 1 do not, with great deference, think that 

 it is a question with which the intervention of the Senate would be 

 called for. 



Senator Morgan. — The Senate would have to affirm any new nego- 

 tiation. 



Sir Charles Russell. — No, it is a question of executive action 

 under an existing Treaty, 



Mr. Phelps, — We shall be very willing to confer with our learned 

 friends in regard to any questions of fact uj^on which we can agree, in 

 respect to these matters. Undoubtedly many questions of fact that 

 they may desire to have found we can agree upon; and if we can, we 

 shall be glad to save them and the Tribunal any further trouble. 



Mr. Justice Haklan, — Still, we have ujion us the responsibility to 

 make a finding as to those facts. 



Mr. Phelps. — Certainly. 



