THIRD DAY, 5TH APRIL 1893. 



The President. — Now, Mr. Phelps, will you kindly continue your 

 argument ? 



Mr. Phelps. — I had the honor, Mr. President, on yesterday to con- 

 sider at a length for which, in view of the importance of tliis question, 

 I shall not apologise, the construction of this Treaty as bearing on the 

 questions of when and how the evidence on which the Tribunal has to 

 proceed sliall be submitted to its consideration. I have spoken of this 

 lieport wliicli it is proposed to put in, as a piece of evidence merely; 

 evidence invested, however, by the terms of the Treaty with a broader 

 scope and a higher character than is aftbrded to other evidence. I 

 remarked that I had not examined the Eeport, and that I could not 

 speak from knowledge in respect to its contents. I have been since 

 informed, and if I have been inaccurately informed I shall be subject 

 to the correction of my learned friends, that this Supplemental Report, 

 as it is called, of the British Commissioners, contains in a sort of 

 Ap]>endix a new mass of evidence; depositions of witnesses bearing 

 on the questions of fact in the case. So that it is not only proposed 

 to put in at this stage, if my information is right, a furtlier Keport of 

 the Commissioners, but a mass of testimony of witnesses testifying 

 upon oath in respect of the facts rejiorted. Now, if that is so, is it 

 possible to carry this discussion any further*? Can it be conceived, 

 after the particular provisions of this Treaty in respect of the time and 

 manner of the submission of the evidence, that at this late stage, when 

 we are just rising to address the Court in an oral argument that might 

 not have taken place at all, — for as I have pointed out the Treaty does 

 not "require" it; it only "allows" it, — that at this stage, not merely 

 this supplemental Report that we are objecting to, but a mass of ex parte 

 testimony coming from witnesses we never saw, that we cannot possi- 

 bly reply to, that contains facts ever so erroneous, untrue or impeach- 

 able we cannot show it, — that such evidence is to be brought in, and 

 perliaps turn the decision of the case, on the important facts that 

 underlie it. 



Two theories have been propounded by the respective parties, upon 

 the construction of the Treaty, in respect to the method of procedure. 

 As I have remarked, this point has been the subject of some diplo- 

 matic discussion, which I shall ask the attention of the Tribunal to, and 

 the views of the other side have been communicated to us in a letter 

 which accompanied, I believe, the notice that this Report would be 

 offered, so that we are advised of the position which the Counsel for 

 Her Majesty's Government take. Their theory is this: That there are 

 to be, in effect, two hearings, two Arbitrations, two awards, first upon 

 the five questions that are propounded in the Treaty, next in the 

 event that those questions should be decided in favor of the British 

 Government, a further hearing upon the subject of Regulations, and 

 that on that hearing fresh evidence, other evidence not theretofore in 



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