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



Sir Charles Eussell. — Quite so. 

 Then 4th: 



That the several orders, mentioned in the said Schedule, whereby ships were pre- 

 vented from piirsninj? their voyages, were given on the high seas outside territorial 

 waters under the authority of the United States Government and in execution of the 

 miiniciiial laws of the United States; and 



5. That the said several searches, seizures, condemnations, confiscations, fines, 

 imprisonments and orders were not made imposed or given under any claim or asser- 

 tion of right or jurisdiction except such as is submitted to the decision of the 

 Arbitrators by tlie questions in Article VI of the Treaty of Arbitration. 



That I think covers the whole ground. At all events we will take 

 the opportunity of handing a copy of those questions to the members 

 of the Tribunal. 



The President. — You imply, by that last question, that we are per- 

 fectly competent to decide all the questions of law which are involved 

 by the seizures'? 



Sir Charles Eussell. — This is a question of fact which we are ask- 

 ing you to find. We are asking you to find that, in fact, the seizures, 

 condemnations, and confiscations, were not made except upon a claim 

 or assertion of right covered by the Treaty. The 5th finding proposed 

 is practically intended to assert, as a fact, that the grounds upon which 

 it is even now sought, (whether by municipal statute, or self-defensive, 

 or self- preservative regulations) are covered by the Treaty. About 

 that, I think there is no room for doubt. 



The President. — May I, once more, put the same question on that: 

 Do you believe that that fifth question of yours is undisputed? 



Sir Charles Eussell. — Absolutely, I think : although, as I said 

 just now it is very difticult to say what is not disputed. I cannot con- 

 ceive that it can be disputed: because its dispute would mean this — 

 that there is some ground behind, which has never ai)peared in the 

 whole course of these years and is not adverted to either in the corre- 

 spondence, the Case, Counter Case, or Argument upon which the United 

 States can justify what it has done, — and which has not been submit- 

 ted to this Tribunal. 



The President. — Perhaps Mr. Phelps will be kind enough, in his 

 turn, to tell us whether he accepts this, or whether he intends to dis- 

 pute it. 



Mr, Phelps. — Certainly. 



Sir Charles Eussell. — Now I wish to get on, with the permission 

 of the Tribunal. I wish to relieve, and am glad to relieve, the Tribunal 

 of one question at all events, and that is the question of damages under 

 Article Y of the modus vivendi of 1892, which is also remitted to this 

 Tribunal. This, Sir, will not need any troublesome reference, because 

 it is an admission I am going to make. At page 216 of the printed 

 Argument of the United States (you need not. Sir, trouble to 

 1198 refer to it, if I may be permitted to say so, because it is not a 

 point of difference between us — it is a matter I am clearing out 

 of the way) — the United States give up any claim to damages under 

 that Treaty ; and I have to say, on the part of Great Britain, and speak- 

 ing with authority in the matter, that although they had under the 

 earlier modus vivendi to pay a very large sum for damages to their 

 Canadian sealers — a sum I think exceeding $100,000 — looking to the 

 fact nevertheless, that under the modus vivendi in question a great 

 many, at least, if not all of the sealers who would have resorted to the 

 eastern part of Beliring Sea had made catches of seals in other parts 

 of the ocean, and although I think it might be argued that this Tribunal 



