ARGUMENTS ON PRELIMINARY MOTIONS. 39 



point and particular. It was all printed, and went into the hands of 

 the British Government at the time when the Case was delivered, on 

 the l''^ !Septeml)er, the time fixed in the Treaty. 



Mr. Justice Harlan. — It was due Sei)tember 7***. 



General Foster. — Sei)tember 5*'' I think. 



Mr. Phelps. — It was some early day in September, and we conformed 

 to the time imposed by the Treaty, whatever it was. It all went in, the 

 evidence we stand upon today, except that which is contained in our 

 Counter Case, which is strictly in reply to the evidence on the other 

 side. We received at the same date the British Case, and, to our aston- 

 islnnent, not a word of evidence was brought forward in it upon any 

 question in the Case, except the questions propounded as to the previ- 

 ous possession and occupation by Russia. 



That is a question which we shall regard and treat as altogether sub- 

 ordinate. It depends chiefly upon documents; documents that are not 

 new, wliich everybody had seen before. The British Case, therefore, 

 contained nothing except a re-print of documents and i^apers relative 

 to the old title asserted by liussia over theBehring sea, and the Treaties 

 between Great Britain and Bussia and Great Britain and the United 

 States, and the correspondence that preceded and followed them. That 

 is what they furnished us. I am reminded by Mr. Foster that there is 

 something about damages in their case, but that is a small matter. On 

 all the merits of the case, with which you will be called upon to deal, 

 merits that cannot be approached, as I said yesterday, except on the 

 basis of evidence, for they all rest on questions of fact, they gave us 

 nothing at all. That was immediately made the subject of correspond- 

 ence between the Governments, and on page 139 and following, as far 

 as page 150 of the Counter Case of the United States, will be found 

 that correspondence. I respectfully ask the Members of the Tribunal 

 to peruse it. I am not justified in taking up the time to read it here; 

 but 1 respectfully ask its perusal. The Government of the United States 

 expressed its surprise that no evidence had been submitted on the part 

 of Her Majesty's Government on any of the questions, which it was 

 perfectly well known by long dispute and correspondence, were those 

 on which this controversy turned, aside I mean from the Russion ques- 

 tion. It remarked that, if it was the pleasure of Her Majesty's Govern- 

 ment to submit these questions without evidence, their right to do so 

 was undoubted. It was not for us to suggest what evidence they should 

 put in, or that they should put in any; so that if we were informed by 

 them that it was not designed to submit evidence, we nad nothing further 

 to say. We could not, however, believe that to be possible; and, there- 

 fore, we claimed that the Treaty required they should put it into their 

 Case, as we had done, so as to give us an oj)portunity to meet it; other- 

 wise we must go to trial upon their whole Case without any opportunity 

 to reply to it by any evidence; and, as we pointed out, with a very scanty 

 opportunity, if the evidence was contained in the Counter Case, even 

 to deal with it in argument. Because the Counter Case was received 

 as late as the 3rd of February; the first meeting of the Arbitrators was 

 on the li3rd of February; we had to find our way across the Atlantic, 

 and not only to make but to print and even translate, which involved 

 printing twice, such written arguments as we desired to submit; so that 

 not only were we deprived of the possibility of taking any evidence in 

 reply, first because the Treaty did not admit of any evidence after the 

 Counter Case, and secondly, because the time did not allow it. We had 

 not even time to deal except very hastily in the written argument that is 

 now before you, — with the evidence on the other side, we pointed out 



