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



witnessed, according to the statistics whicli were read to us, 1 ini<:?ht 

 say au extraordinary increase of tlie pelagic sealing during these two 

 years, during this sort of " close season," — at all events, close season 

 for the Americans: — is that quite free from maliciousness in your eyes? 



Sir Charles Kussell. — Absolutely. Let me suggest this: or, 

 rather, let me first make the ground perfectly clear. The first time 

 that the suggestion of the word "malice" has occurred here comes 

 from you, Mr. President. You will not find a trace or suggestion of it 

 in the Case, or in the diplomatic correspondence. 



The President. — But malice may exist without suggestion. 



Sir Charles Russell. — Yon are dealing with this case, I presume. 

 Sir, like every other Tribunal, according to the case presented, supple- 

 mented by such additional light as your own erudition may bring to 

 bear upon it. The case is not i)resented as a malicious injury, but as 

 the case of an invasion of a legal right. That is what I meant to urge 

 upon you ; but I would like to consider it a little more closely for a 

 moment. 



In the pelagic sealing which occurred after the modus vivendi many 

 persons took part belonging to various nationalities. You will bear in 

 mind, of course, that the people who engaged in this were not Cana- 

 dian sealers only, but were American citizens also. It is a little strong 

 to suggest that the American sealers were pursuing this pelagic sealing 

 not to benefit themselves, not to put profit into their own pocket by the 

 pursuit of what they conceived to be a right, but were doing it mali 

 ciously to injure the property of the nation to which they belonged. I 

 think the suggestion, with great deference, will not be found to be 

 sustained by any facts. 



The President. — I merely want to make the matter quite clear. I 

 did not suggest anything myself, of course. 



Sir Charles Eussell. — The point I wish to emphasize is this. My 

 learned friends are acute lawyers, as of course you know, and men of 

 eminence. They know how best to frame their case in the Avay tliat 

 seems to them strongest. We have seen how they have departed in a 

 large measure, as I conceive, from the original case put forward, and as 

 I have endeavoured to demonstrate, in the diplomatic correspondence, 

 and how, in this elaborate written argument, they have formulated in 

 the best way they conceived it i)ossible to formulate it. 



They know as well as any of us that there is the greatest distinction in 

 point of law as to the legal liability for acts done maliciously and for 

 acts not done maliciously 5 and therefore, as they cite such cases as 

 Keeble v. Hiclwringill, if it had been intended to suggest that the 

 pelagic sealers were doing this not to profit themselves, but to 

 1058 injure the tenants of the Pribilof Islands or the United States 

 interest in the Pribilof Islands, we should have had, of course, 

 some definite suggestion of that sort. 



Lord Hannen. — I follow your argument so far, but does that argu- 

 ment meet an illustration of Mr. Phelps? Suppose dj^namite was used 

 for the same pur^aose and resulted in the wholesale destruction of fish, 

 that would not be malicious, because it was done for the purpose of 

 immediate gain. What would you say to that case? 



Sir Charles Russell. — I have not forgotten that illustration, and 

 as you mention it, my Lord, I will come to it at once. I am taking it a 

 little out of order. The case my friend has put in that connection is 

 this, that where the use of dynamite would cause a wholesale destruc- 

 tion of fish Avith a small and disi^roportionate gain to themselves it 

 would be illegal : that is my learned friend's proposition. To begin 



