34 ARGUMENTS ON PRELIMINARY MOTIONS. 



lication of the reports; but still it is useful to see what the term "con- 

 tingency" means there, that is to say, what it refers to. Does it refer, 

 as my learned friends will contend, to the contingency of tlie Tribunal 

 deciding against the United States on the Ave questions that are first 

 propounded, or does it refer to the contingency of there being any arbi- 

 tration at all? There again we are enlightened by referring to the 

 correspondence. When we look into the history of that Article which 

 was likewise the ''child of travail", when we see how that article came 

 to pass in the form which it has assumed, we see what that contingency 

 means. The original theory or desire of both these Governments, I 

 repeat, was that this Commission would settle the dispute; that if they 

 went to the islands — if experts selected for the purpose examined the 

 subject exhaustively — more exhaustively than you can examine it on 

 evidence, that they would be sure to agree, inasmuch as they started 

 with a common object. 



That was the view of the Governments; but whether all the Commis- 

 sioners acted with that intent or not, is a very diiierent question, which 

 will engage your attention at a later stage of this hearing. That the 

 Governments started with the idea on both sides that this valuable ani- 

 mal should be preserved, in this its last resort on earth, from extermina- 

 tion as a common interest they have made plain in various ways. Why 

 it was that they did not succeed will be the subject of discussion before 

 we cease to trouble you with the consideration of this Case. It is 

 immaterial now. These two provisions that are now embodied in the 

 same Treaty were originally separated. 



Great Britain for a long time, (I cannot detain you to wade through 

 all this correspondence, but if you should care enough about this point 

 to run through it, you will perceive that it supports what I say, and I 

 think that my learned friends on the other side will not question it,) 

 Great Britain for a long time was pressing the proposal of this Joint 

 Commission. It Was not received by the United States with favor in 

 the first place, but still it was pressed with diligence and ability by the 

 British Government, and finally the United States gave way, and two 

 Agreements were made, (one for the joint Commission) which are now 

 embodied principally in article 9 of the Treaty of Arbitration. If the 

 Commissioners agreed, there would be no occasion for any Arbitration. 



Lord Hannen. — Where is that embodied in the Treaty? Is that 

 anywhere embodied in the Treaty that, if the commissioners agreed the 

 Arbitration would not go on ? 



Mr. Phelps. — Ko, your Lordship, it is not. I am referring to the 

 diplomatic correspondence, which, upon the reference I shall endeavor 

 to give will shew very plainly that the Government hoped and expected 

 that the Commissioners appointed would settle this dispute; if they 

 failed to settle it then it was to be referred to arbitration. If they set- 

 tled it, the questions of right, as the Government then regarded the 

 Case, became immaterial, as all that the Government of the United 

 States wanted was the preservation of the seal. They did not care to 

 have a decision upon an abstract question of immaterial rights. It is 

 the interest of no nation to challenge decisions such as that. 



I shall have occasion, when the report comes to be considered, to 

 enlarge ujion these points; all that I am upon now is the question what 

 does the term ''contingency" refer to in the ninth Article? I say that 

 the previous correspondence shows that it refers to the contingency of 

 any Arbitration being necessary at all, not to the contingency of what 

 decision the Arbitrators should make if they made any. 



