26 ARGUMENTS ON PRELIMINARY MOTIONS. 



right reserved to the Tribunal to direct it, if in their judgment it should 

 become material. Since then, the Case, so far as the requirements of 

 the Treaty are concerned, was completed, and would have been finally 

 submitted, the Agent of Her Britannic Majesty's Government has laid 

 before the Arbitrators, and furnished to us, a printed copy of a new 

 docum«nt, which we have not examined, purporting to be a supple- 

 mental report of the Commissioners appointed on the part of Great 

 Britain under the provisions of this Treaty. I cannot doubt that this 

 step was taken under the advice of my friends upon the other side, in 

 the belief that it was in the exercise of a right. The existence of such 

 a right is the serious question which this motion presents. 



In the first place. I desire to call your attention to the provision in 

 the Treaty under which the report of these Commissioners comes at any 

 time or in any event before the Tribunal. It is to be found in Article 

 IX. I may usefully read the whole article: 



The High Contracting Parties have agreed to appoint two Commissioners on the 

 part of each (Tovernuient to malve tlie joint investigation and report contemplated 

 in the preceding Article VII, and to include the terms of said agreement in the 

 present Convention, to the end that the joint and several reports and recommenda- 

 tions of said Commissioners may he in due form snbmitted to the Arhitrators, should 

 the contingency therefor arise, the said agreement, is accordingly herein included, 

 as follows: 



Each Government ahall appoint two Commissioners to investigate conjointly with 

 the Commissioners of the other Government all the facts having relation to seal life 

 in Kehrings Sea, and the measures necessary for its proper protection and preser- 

 vation. 



The four Commissioners shall, so far as they may he ahle to agree, make a joint 

 report to each of the two Governments, and they shall also report, either jointly or 

 severally, to each Government on any points upon which they may he unable to 

 agree. 



These reports shall not be made public until they shall be submitted to the Arbi- 

 trators, or XX it shall appear that the contingency of their being used by the Arbi- 

 trators cannot arise. 



I will now read Section 7 of the Treaty referred to in Article IX : 



If the determination of the foregoing questions 



the five questions propounded in the i)receding Article. 



If the determination of the foregoing questions as to the exclusive jurisdiction of 

 the United States shall leave the subject in such position that the concurrence of 

 Great Britain is necessary to the establisbment of Regulations for the proper pro- 

 tection and preservation of the fur-seal in, or habitually resorting to, the Behring's 

 Sea, the Arbitrators shall then determine what concurrent Regulations outside the 

 jurisdictional limits of the respective Governments are necessary, and over what 

 waters such Regulations should extend ; and to aid them in that determination the 

 report of a Joint Commission to be appointed by the respective Governments shall 

 be laid before them, with such other evidence as either Government may submit. 



It will be perceived that the Treaty provides, in the first place, for 

 the appointment of a Joint Commission, in the hope — 1 am justified in 

 saying certainly, so far as the Government of the United States is con- 

 cerned, and I doubt not, so far as Her Majesty's Government is 

 concerned — in the hope and confident belief that such a conclusion 

 would be reached by that Commission as should obviate the necessity 

 of any further controversy, negotiation or arbitration. If the Commis- 

 sioners had been fortunate enough to agree, such would unquestionably 

 have been the result; but it is provided — and we shall have occasion 

 in tlie course of this discussion to point out how these provisions origi- 

 nated in the negotiation, — I am dealing with them now only as they 

 find place in the Treaty — it was provided that if this Commission should 

 fail to agree upon such Regulations as the Government should be will- 

 ing to adopt, then the Arbitration which is now in progress became 

 necessary, which otherwise never would liave taken place; and in that 



