ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 285 



still was not without a certain volume of importance even during earlier 

 years. The suggestion is worth following. In the first volume of the 

 Appendix to the United States Case, there is a table giving the nation- 

 ality of the vessels engaged in pelagic sealing. 



Sir John Thompson. — I thought the decision you lately read, Sir 

 Charles, was to the point that if the defendant had had no occasion to 

 shoot or kill birds or animals on his own land, it would have been malice 

 prepense? 



Sir Charles Eussell. — Yes, but as the learned President has men- 

 tioned the subject I think it respectful to pursue it a little further. 



Sir John Thompson. — Before you finish I should like to ask you to 

 satisfy me upon what branch of this enquiry we have given us in charge 

 the question of malice pre|)ense. 



Sir Charles Eussell. — I do not know, because it is not alleged. I 

 hear of it for the first time. 



Lord Hannen. — You take the point that it is not amongst the 

 allegata. 

 1061 Sir Charles Eussell. — It is not amongst the allegata. 



Sir John Thompson. — I am not upon that, but upon what 

 branch of the Treaty is this? on what question — Jurisdiction, property 

 interest, or regulations'? 



Sir Charles Eussell. — I do not know. I cannot say. 



Mr. Justice Harlan. — I suppose it arose from the distinction you 

 were making between the destruction of the industry maliciously or by 

 simple i)ursuit, and what you regard as a right. 



Sir Charles Eussell. — Yes. The way, probably, it would be said 

 to have some relevance is this. I was stating what were the positive 

 rights attached to an industry; and I was stating what negative rights 

 an industry had: the negative right I indicated was, to be protected 

 against a malicious injury. They do not complain of malicious injury. 



The President. — Supposing an allegation of malice had been 

 made — it is not the case — it \\ould refer would it not to question 5? 



Sir Charles Eussell. — I find it difficult to say that it would; but 

 I assume that it would for the moment. 



The President. — Until the regulations come to be considered. 



Senator Morgan. — It seems to me it refers to the third question of 

 Article I. The third question of Article I concerns the rights of the 

 citizens of both countries to take seals in the open sea. 



Sir Charles Eussell. — I^o, Sir, with deference. 



Senator Morgan. — " Tlie riglits of the citizens and subjects of either 

 country as regards the taking of fur-seals in or habitually resorting to 

 the said waters." 



Sir Charles Eussell. — That Article is "T^e questions which have 

 arisen," concerning, and so on. Then the formulation of the questions to 

 be answered is to he found in Article VI. 



Senator Morgan. — I do not so understand the Treaty. Those are the 

 joints in Article VI. Not questions, hut suhdivisions of questions. 



Sir Charles Eussell. — 1 was about to call attention to a Table 

 which I have before me. First liowever I wish to note the fact that on 

 page 108 of the first volume of the Appendix to the Case of the United 

 States, it appears that as early as 187G an American vessel called the 

 '■'■ San Diego" was seized for sealing near Otter Island, which is close to 

 the Pribilof Islands. 



Mr. Justice Harlan.— Is not that 18831 



Sir Charles Eussell. — No, Sir, 187G — she was an American vessel. 



Mr. Justice Harlan. — The " San Diego" i 



