ARGUMENTS ON PRELIMINARY MOTIONS. 31 



words wliich standing by themselves may be consistent or inconsistent 

 with one construction or the other. If the words are not decisive in 

 their meaning, if they are not conchisive, if they are open to interpre- 

 tation the resort is to the context of the Treaty, and the object and 

 situation of the parties, as throwing the best light upon the meaning of 

 the terms. 



Therefore passing altogether the question of when the Tribunal is to 

 hear argument upon this question, what evidence are they to consider 

 when they do undertake to determine it. That is made perfectly clear 

 when we iind that no evidence can come before it in any way that the 

 Treaty provides or in any way that the Treaty authorises the Tribunal 

 to provide, except in the Case and the Counter Case. That is so care- 

 fully, so sedulously provided, in order to secure to both parties the right 

 of putting in all their evidence and the right of replying to all the evi- 

 dence that is introduced on the otlier side. It is said however, that 

 under the peculiar wording of article nine there is further encourage- 

 ment to be found for the suggestion that other evidence may be sub- 

 mitted, at least so far as the reports of the Commissioners are concerned. 

 These reports, says the Treaty, shall not be submitted to the Arbitra- 

 tors if it shall be found that the contingency of their being used by the 

 Arbitrators cannot arise. It is said that this contingency is the con- 

 tingency of the decision; that it is the contingency whether the Arbi- 

 trators shall decide in favor of or against the claims of right which the 

 United States Government have set up. We regard that construction 

 as altogether erroneous. It is the contingency of the Arbitration itself — 

 the contingency of there being any Arbitration, not the contingency of 

 the decision on the previous question that the Arbitration shall reach, 

 if it takes place. 



Before, however, I proceed with what I had begun to say on the sub- 

 ject of the term "contingency " in the ninth article, I should have drawn 

 the attention of the Tribunal to the history of the language of article 

 seven, which I have been previously considering. With your permis- 

 sion, I will recur to that subject for a moment, long enough to point out 

 how this language came to be employed. The Treaty, as I need not say 

 to any judicial eye that has perused it, is a piece of patchwork. It has 

 been reached in the process of a long negotiation, here a little, and tliere 

 a little — noic a provision then a provision, and most unfortunately it was 

 not submitted, after all these pieces of patchwork were brought together, 

 to the revision of such a legal mind as would have tried to make its lan- 

 guage consistent with its sjurit. It is idle to deny that the document 

 is full of expressions, each of which taken by itself would be found to be 

 altogether inconsistent with something else. 



We are required for instance to furnish a written Argument within 

 thirty days after the Counter Case is filed; but the Treaty requires that 

 in twenty days the Arbitrators shall assemble and "immediately" enter 

 on the decision of the Case. The written argument then comes in ten 

 days after the Tribunal have decided the case. That is only an illus- 

 tration. 



Mr. Justice Harlan. — It is not " decide", but, "proceed to examine". 



Lord Hannen. — And "consider it." No one could have been so san- 

 guine to imagine it could be decided immediately. 



Mr. Phelps. — It is to be presumed that a Tribunal of such distin- 

 guished members as this would not have considered this case for ten 

 days without forming some opinion upon it. 



Senator Morgan. — We miglit have spent that much time in the ques- 

 tion of what our powers are, might we not? 



