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



The President. — And upon tliose tacts which shall be submitted 

 to us. 



Mr. Phelps. — But upon another class of facts we are not likely to 

 agree. 



Senator Morgan. — I will say for inyself that I do not feel at liberty 

 to make a finding upon any state of facts that has not been regularly 

 submitted to this Tribunal under that Treaty. It says " Questions 

 shall be submitted". That means that they shall be submitted in 

 proper form and at the proper time. 



Mr. Phelps. — I quite agree that the finding must be by the Tribunal. 

 What I meant to say was that I am pre[)ared to say to the Tribunal 

 that we have nothing in opposition to certain facts which we are not 

 prepared to dispute. 



The Tribunal here adjourned for a short while. 



Sir Charles Kussell. — I will not pursue the discussion upon 

 786 the construction of article VIII at this moment, but Avill content 

 myself with saying in relation to it that we think it will assist 

 the Tribunal if we formulate in a written pa|)er the findings which, 

 according to our construction of the Treaty, are findings within the 

 meaning of article VIII, and which the Tribunal should be called upon 

 to affirm. I will take the opiiortunity of saying that these statements 

 of fact shall be submitted to my learned friend on the other side, so 

 that when he comes to reply we may have his expression, probably of 

 assent, or it may be in part of criticism, of those statements. 



I now proceed to the consideration of the facts relating to the sei- 

 zures themselves; and it will be convenient if I state 

 s^izurfr*^ "^ ^^^^ brietly to the Tribunal the order of argument that I intend 

 to pursue. I intend to bring before the Tribunal, without 

 any colour, the facts of the seizures and the circumstances which fol- 

 lowed them in the order of events. 1 shall not feel called upon to make 

 much comment in relation to them. I shall then proceed to call the 

 attention of the Tribunal to the diplomatic correspondence, beginning 

 with the protests always persevered in by the British Government, fol- 

 lowing the seizures when they occurred, and examining the grounds 

 which were put forward by the United States in supposed justilication 

 of those seizures. I shall then examine, for an important purpose, the 

 legislation of the United States which became the basis of the judicial 

 proceedings in the Courts in which confiscation of the seized vessels 

 was sought; and lastly I shall examine the judgments of the judges 

 who determined the confiscations. 



My objects in doing this are to establish, first, that those seizures 

 were unwarranted in point of law; to establish, next, that the executive 

 action of the United States was based, and based solely, upon their 

 municipal legislation, and upon the ground that the seizures took place 

 where there was territorial dominion of the United States justifying 

 the application of their municipal legislation to that locality: and that 

 nowhere is there to be found any suggestion of the contention now put 

 forward, that those proceedings were really justifiable not under the 

 municipal legislation at all, but were justifiable and can be defended 

 upon the ground that it was merely an invocation of the inherent right 

 to protection which every State has the right to invoke for the protec- 

 tion of its property. Next, and particularly in connection with the 

 proposition last mentioned, I propose to show, that this legislation can- 

 not be treated as being in the nature of executive protective regulations, 

 because it is legislation which is expressly confined, and has been 

 judicially held to be confined, to a definite and defined area, namely the 



