ARGUMENTS ON PRELIMINARY MOTIONS. 41 



Mr. Phelps. — The Britisli Government said, as you will perceive 

 from the correspondence and the letter of Lord Rosebery, that they did 

 not conceive that we were entitled to it, but as we had complained of 

 the manner in which they had proceeded, they were willing to furnish 

 it to us. They furnished it to us very much as we furnished to our 

 friends on the other side the Report that was under discussion yester- 

 day, not as a matter of right, but as a matter of favor. 



Lord Hannen. — A concession. 



Mr. Phelps. — Yes, a courtesy. 



Senator Morgan. — Was it furnished as constituting part of the Case. 



Mr. Phelps. — It was furnished to be received as a part of their 

 Case. That is the way it was received, but in making it a part of their 

 Case, they did not admit that they were obliged to do so, but that in 

 view of the considerations we had presented as to its fairness, they con- 

 sented to do it. If they had furnished their other evidence, there would 

 have been no ground of complaint. The case went on, and on the 3^** 

 of February we received the Counter Case which is before you, which 

 you will perceive contains a great mass of evidence, of which theKeport 

 of the British Commissioners which we had previously seen was but a 

 small part. A great amount of ex parte depositions — we do not com- 

 plain of their being ex parte — ours are ex parte — that is the necessity of 

 the case. But the fact that it was necessanly ex parte made it far more 

 important that we should be furnished with it in time to re[)ly. But 

 the testimony is not only ex parte, but came to us on the same day that 

 it came to you. We saw this testimony when you saw it, and we never 

 saw it before. Then it became necessary for Counsel to determine what 

 course to take. An obvious course was to apply to the Tribunal in 

 advance of the hearing to strikeout all the evidence upon the merits — 

 all the evidence that should have been in the Case — I mean all that was 

 not properly in reply to our Case. What would have been the con- 

 sequence of that motion if we had made it? If the Tribunal had 

 accepted our construction of the Treaty, and held that its Articles 

 required that their evidence in chief should go into their Case, and that 

 the Counter Case should be confined to evidence in reply, and had 

 therefore stricken out the whole body of this evidence, that would be, 

 of course, an end of the Arbitration. W"e could not ex])ect that my 

 learned friends would go on with this case if all their evidence was 

 stricken out. We could not ask them to do it. If we had succeeded 

 therefore in eliminating from this case all the evidence on the part of 

 Her Majesty's Government, we should have brought the Arbitration to 

 an end, because, as I have before remarked, there is no power in the 

 Tribunal to enable them to replace it. It would have been only an 

 indirect way of revoking the Arbitration, if we had prevailed by the 

 decision of the Tribunal upon such a motion. We examined the evi- 

 dence, and decided, unfair and unjust as it was, and much as we should 

 have liked to reply to much of it, that we could sustain our case not- 

 withstanding, and we would go on. 



Now, upon the top of that, after our written argument is submitted, 

 and when we rise to address the Court, a new batch of attidavits or 

 depositions, or whatever they should be called, and a fresh report by 

 these industrious gentlemen whose labors have pervaded the case from 

 beginning to end, and whose conjectures and inferences and hearsay 

 and everything else that they think proper to include, are made evidence 

 by the Treaty, are proposed to be put in. What is the consistency of 

 the position on the other side? They say that in their view all evidence 

 bearing upon Kegulations should be reserved till after the Award of the 



