30 ARGUMENTS ON PRELIMINARY MOTIONS 



argument provided for may be furnished two or three months after the 

 Case. All that discretion, as everybody knows, does attend the juris- 

 diction of any established judicial Tribunal having- general judicial 

 powers. But in this case these two countries having constituted a 

 special Tribunal for the decision of this S])ecial Case alone, have thought 

 proper to not merely constitute the Tribunal, but to define and limit 

 and prescribe with the utmost particularity all the steps of its procedure. 



Then, recurring to Article 7, it has been said on tlie i)art of Her 

 Majesty's Government, because as we shall see, this subject has been 

 the occasion of correspondence, it has been assumed that the question 

 of regulations submitted to the Tribunal was not to be taken up or 

 entered upon until the hearing upon the j>revious questions in the Case 

 had been completed and the decision of the Arbitrators announced; 

 that is to say, that the Treaty provides for special separate arbitrations 

 by the same Tribunal. That the Case is to be completed, argued and 

 submitted upon the five previous questions, that a decision is to be 

 reached and an award is to be made, and then if that award should be 

 one way, that a new hearing upon new evidence, upon new argument 

 was to take place on question six. Well, passing for this moment, the 

 question whether there should be a separate hearing, which we alto- 

 gether deny as a construction of the Treaty, the enquiry is, upon what 

 evidence are you to enter upon the question of the Kegulatious, if you 

 ever do enter upon it — not at what time, not upon what oral argument, 

 but upon what evidence are you to enter upon a question which depends 

 exclusively upon evidence and proof"? 



Other questions in this case involve important considerations of law, 

 and some of them possibly are purely questions of law. The question 

 of Regulations, if the Tribunal should ever reach the determination of 

 it, is purely a question of evidence submitted to a Tribunal who are not 

 chosen for their familiarity with the facts upon which it depends, who 

 from the very nature of their high position and employment must be 

 absolutely ignorant on the whole subject till they are enlightened by 

 evidence. What Member of the Tribunal, what gentleman who could 

 even have been thought of as a proper Member of it is exi^ected to 

 understand the business of seal life and seal killing and seal breeding, 

 and all its incidents that now encumber this case to such an extent that 

 one can never be sure that he has mastered it? 



"The Arbitrators shall then determine what concurrent Eegulations 

 outside the jurisdictional limits of the respective Governments are nec- 

 essary, 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." What other 

 evidence! How taken? When? How replied to? How brought before 

 the Tribunal? The Treaty is absolutely silent, unless it is the evidence 

 which in the Articles I have already read is provided for, to be set forth 

 in the Case and the Counter case, and to be dealt with in the Argument. 

 While the Tribunal is" invested with no power to take testimony, or to 

 order the taking of testimony, or to fix a limit of time within which it 

 should be taken, or the manner in which it should be made known to 

 the other side — while there is absolutely no suggestion of such a provi- 

 sion, nor the conferring of any general jurisdiction that would include 

 it, still it is spoken of as "such other evidence". Why it is the irre- 

 sistible concluvsion from the reading of this Treaty, taking it upon those 

 common rules of construction that regard in the first place the object in 

 view, and secondly, the context of the whole instrument and not detached 



