38 ARGUMENTS ON PRELIMINARY MOTIONS. 



the case, is to be admitted. That is their view. We deny altogether 

 that the treaty contemplates any such thing as two hearings or that 

 the Case discloses any propriety for such a method of procedure; I do 

 not say necessity, but any proi^riety. 



The language of the article is: "If the determination of the fore- 

 going questions as to the exclusive jurisdiction of the United States 

 shall leave the subject in such position that the concurrence of Great 

 Britain is necessary to the establishment of Regulations for the proper 

 protection and preservation of the fur seal in or habitually resorting to 

 Behringsea, the Arbitration shall then, determine", not that they shall 

 " then hear", not that they shall "hold a new session to receive evi- 

 dence not before placed in their hands ", not, I repeat, that there " shall 

 be a second Arbitration", but "that they shall then determine". 



It is the common case, the very common case in judicial proceedings, 

 where a case presents different questions, the decision of one of which 

 one way suj)ersedes the necessity of deciding the others; — as wheie a 

 liability in an action is denied, if that contention is sustained, and it is 

 found that the defendant is not liable, there is an end of the case; if 

 the decision is the other way, and it is held that the deiendant is liable, 

 then arises and requires to be determined, the question of damages. 

 Not upon a second hearing. All those questions are argued together 

 to the Court; and they determine so many of them as is found to be 

 necessary to the disposition of the case. The same remark applies to 

 a great variety of cases. There are very few cases of any magnitude 

 that turn necessarily and entirely upon one question. There are usu- 

 ally alternatives of decision. A multitude of points are argued, any 

 one of which may be, in the judgment of the Court, decisive. This Case 

 is no more than that, and provides for no more than that; and the 

 language of these Articles is perfectly consistent with such construc- 

 tion, even though taken alone you might say it was not inconsistent 

 with the other. — Taking a few words here, or a line there, you might 

 say that is consistent with the other construction; but if there is any 

 patent or latent ambiguity in the language that is employed in these 

 articles, it is disposed of as far as the question of evidence is concerned, 

 when you find that the only opportunity for putting in evidence at all 

 on any question, is confined to the Case and to the Counter case. I 

 admit that it is conceivable that you may hear this Case twice, that 

 you may hear the five questions and decide them, and then hear the 

 sixth, though the Treaty calls for no such thing, and the ordinary course 

 of procedure precludes it. But that you shall hear it upon any other 

 evidence than that which the case already discloses, is impossible, 

 unless you adopt the alternative that you will hear it upon evidence 

 which the Treaty furnishes no means of taking or submitting, and no 

 possible means of reply to by the side against whom the evidence is 

 produced. Our construction of the Treaty therefore is that the whole 

 case is to be heard upon the evidence in the Case, and in the Counter 

 case; and what the proper discrimination between the two is I shall 

 have occasion to ask the attention of the Tribunal to hereafter. — But 

 the hearing is to proceed upon the evidence that is already in the Case 

 and the Counter Case, and there is no provision for, and no possibility 

 of admitting further and future evidence of any kind under the strict 

 provisions of this Treaty. This question is not new; I mean it is not 

 new in the history of the Case. The United States, to begin with, 

 never having conceived for a moment of any other construction as pos- 

 sible, and never dreaming that any such other construction would be 

 set up, put in to its Case, its original Case, all its evidence upon every 



