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



Senator Morgan. — If there was an error in the Judgnient of the 

 Court, you had your right of appeal to correct it. 



Sir Charles Kussell. — Except that, as a matter of fact, there was 

 110 right of appeal. 



Senator Morgan. — None? 



Sir Charles Eussell. — 'No. If that be questioned, I can refer to 

 the fact. We gave notice of a])penl, and it turned out that the judicial 

 arrangements were in a somewhat rude state in Alaska, and there was 

 no Court to wliich it could be had at that time. 



Senator Morgan — The case was not beyond the power of prohibition. 



Sir Charles Kussell. — Now you are touching upon a thorny sub- 

 ject, on which men may well difler. I can only say it was thought by 

 those advising the Government of Her Majesty, or the Canadian Gov- 

 ernment, that it was worth trying if there could be a prohibition. But 

 Mr. Justice Harlan was of a different opinion. 



Mr. Justice Harlan. — In one of those cases, the appeal taken by the 

 vessel — I think so, but the book will show — was dismissed by the 

 pelagic sealers themselves. 



Sir Charles Eussell. — On the ground, as I am informed, and as 

 the papers show, that though they gave notice of appeal, it turned out, 

 owing to the imperfection of judicial arrangements then existing — they 

 have been set right since — there was no Court to go to. 



Mr. Justice Harlan. — Perhaps not the imperfection of judicial 

 arrangements, but the want of proper iireparation of the case for an 

 appeal under the Statute. 



Sir Charles Eussell. — I think not, with deference. 



Mr. Justice Harlan. — Well, I may be wrong. 



Sir Charles Eussell. — At all events, if that is a matter that presses 

 on the mind of the Court, I will take care to come furnished with 

 the exact facts, but I think it is not important. It is not a case, as the 

 members of the Court will recognize, of litigation as between subjects, 

 and where the judgment of a Court may work a grievous wrong, which 

 may give rise to the need for diplomatic intervention; in which case it 

 is a diplomatic rule that all modes of possible redress furnished by the 

 judicature of the country should be pursued before diplomacy will 

 intervene. That is a clear rule, but it has never been held to apply to 

 an Act of State, where the contention was, on one side, that the State 

 was acting, or the autliority of the State was being invoked, to bind 

 another State outside the limitations of law. My learned friends have 

 not made that xioint, and it is so bad a point that I do not expect it 

 will be made. 



EXAMINATION OF THE FIRST FOUR QUESTIONS OF ART. VI. 



I come next — and I am very glad to feel I am making some little 

 progress, not as much as I could wish — to the questions 1, 2, 3 

 855 and 4 in Article VI, upon which the Tribunal will remember that 

 whatever position in argument is taken by the learned counsel 

 on one side or the other as to suggesting a greater or less relative 

 importance to those questions, yet that course does not affect the duty 

 of this Tribunal, the obligation, I may respectfully say, of this Tri- 

 bunal, to decide upon their meaning; because Article VI requires " that 

 the awaid of the Arbitrators shall embrace a distinct decision upon 

 each of the said live i^oints". 



I group those four questions together for an obvious reason of con- 

 venience. They naturally hang together. The fii'st deals with the 



