ARGUMENTS ON PRELIMINARY MOTIONS. 33 



Senator Morgan. — That was introduced into the negotiation later. 



Mr. Phelps. — Yes. Mr. Wharton on the part of the United States 

 proceeds as follows: — "I am now directed by the President to submit 

 the following-, which he thinks avoids the objection urged by Lord Salis- 

 bury". Then he submits the draft which is now found in the Treaty. 



Senator jMobgan. — Would you allow me to ask, if it does not inter- 

 rupt you, what was the date of the submission of that draft? 



Mr. Phelps.— That letter is dated the 25tb June, 1<S91. Tbe letter 

 of Lord Salisbury stating this objection is dated February 21st; there 

 was intermediate correspondence, of course, but tlie decisive reply 

 which met the point of the letter of February 21st did not come till 

 June 25th, and then it was satisfactory to Her Majesty's Government, 

 and the Article was i)ut into the Treaty in the language Mr. Wliarton 

 proposed. 



Senator Morgan. — After four montlis' consideration. 



Mr. Phelps. — Perhaps it was rather more, but, at all events, four 

 months' consideration. 



This review of the language of that Article will show that there is no 

 particular significance to be attached to these words " further evidence" ; 

 that they are, so far as that section is concerned, what might almost be 

 called accidental words, referring to a subject which it was not the pur- 

 pose of that section to deal with — referring to another section in the 

 Treaty. Therefore, we must go to the other section in the Treaty to find 

 what the "further evidence" means, and then we are brought to the 

 conclusion which I expressed before, that it can have no meaning except 

 the meaning that it necessarily implies — the evidence which the Treaty 

 otherwise provided for. 



Senator Morgan. — Where are those words "further evidence"? 



Mr. Phelps. — In the 7th Article. 



Lord Hannen. — No, it is "Other evidence". 



Senator Morgan. — Yes. 



Mr. Phelps. — Yes, it should be "other". It leaves this singular 

 alternative. If the "other evidence" means the evidence provided for 

 by the Treaty, and embodied in the Case and Counter case, theu it is all 

 intelligible and plain ; but if it does not mean that, it provides or rather 

 it contemplates, I should not say that it provides, because there is no 

 provision, the submission to the Arbitration of evidence, the taking of 

 which, the presentation to the other side of which — the argument of 

 which — is not provided for at all; and without investing the Tribunal, 

 I repeat, with any power of meeting that emergency as a Court of Chan- 

 cery might meet it, who could say that such a time should be allowed 

 to the Complainant to take his testimony, and such a time to the 

 Defendant to answer it, and then such a time to the Comi)lainaut to 

 reply. There is no such provision as that, and we are brought to the 

 alternative which is impossible here, because there is a justice of proce- 

 dure as well as a justice of judgment, and there can he no justice of 

 judgment unless it is founded upon justice of procedure. There can b« 

 no such thing as a just judgment which is founded upon evidence with 

 which the other party has never been confronted. 



Now, Sir, I recur to what I had begun to say on the subject of the 

 word "contingency" in the ninth article, because we have been ajjprised 

 in previous correspondence of the ground upon which the proposal to 

 give this evidence is intended to be supported. The reports it is said 

 shall not be made public till submitted to the Arbitrators, or until it 

 shall appear that the contingency of their being used by the Arbitrators 

 cannot arise. In the first place, that has reference merely to the pub- 

 B s, PT XI- — 3 



