42 ARGUMENTS ON PRELIMINARY MOTIONS. 



Tribunal upon the previous five questions; that our evidence on the 

 subject jniuted in our Case, is irregular, and should not have been put 

 in at all; that they were not only justihed but required to withliold 

 theirs, and that it is we who are irregular as far as the question of lieg- 

 ulations is concerned. What is this evidence'? What does it bear on? 

 If it bears only on Kegulations, why is it now oftered on their theory? 

 The time has not yet come for putting in any of it, if their construction 

 is correct. Why is their Commissioners' Keport, which is by the 

 Treaty solely confined to the subject of Regulations — why is that in? 

 In answer, it may be said, to our complaint. Then why is the rest of 

 this evidence ottered, if the time for it has not yet come? On the other 

 hand, if it bears on the merits of the Case, and as these questions are 

 inextricable, it does bear upon the merits of the Case, and you will find 

 in the ])rinted arguments of my learned friends that it is all relied 

 upon all the way through on all questions, why was it not included 

 in the Case where we could meet it? By this inconsistent construction 

 which in its result is so unfair, they get into the case for all purposes 

 througli their Counter case, the body of their evidence, in such manner 

 that we are entirely unable to reply to it by testimony in contradiction, 

 impeachment, or explanation. The Tribunal will seethe importance of 

 this. They will see why we have felt justified, at a length that 1 fear 

 has been wearisome, in discussing the construction of the Treaty on 

 this all-important point. The United States Government point out in 

 their correspondence that if they had dreamed of such a construction, 

 they would not have entered into this Treaty. They need not have 

 pointed it out. Is there a man who is compos mentis that would enter 

 into a contract to try an imi)ortant cause before any Tribunal, upon 

 the terms that bis adversary should hear and have possession of his 

 evidence, and have an ample opportunity of replying to it, and that he 

 should have no 0])portunity to meet the evidence that was brought 

 against him? Is there a Court that ever sat that had any discretion 

 on the subject that would permit such a thing to take place? Is it 

 conceivable that the United States Government were so anxious to 

 afford the world the exam])le of an international Arbitration that they, 

 understanding it, entered into an agreement to try this case upon 

 those terms? Mr Blaine, who had ceased to be Secretary of State, 

 and is now passed away, but under whose administration this Treaty 

 had been negociated — one of the last acts — the last act, I am reminded, 

 of his life that had reference to any official business, was to subscribe 

 his name to the declaration that he never dreamed of such a construc- 

 tion, and that it never was suggested from the other side in the whole 

 course of the proceedings. It was an unnecessary declaration, because 

 to suppose the contrary would be to stultify the Secretary of State. 



The President. — Is this opinion of Mr Blaine laid down in an 

 official document which you mention. 



Mr. Phelps.— He had ceased to be Secretary of State, so that it 

 would not be proper to describe it as an official document. It was fur- 

 nished to the Secretary of State and transmitted to the British Gov- 

 ernment, and is printed in the correspondence to which I have just 

 referred the Tribunal, and will be found in page 350. 



The President. — Will you be kind enough to read it if it is not too 

 long? 



Mr. Phelps. — It is from Mr. Blaine to Mr. Foster, November the 8th 

 1892. Mr. Foster was then Secretary of State: "After an arbitration 

 had been resolved upon between the American and British Goverments, 

 a special correspondence between the Department of State and Lord 



