44 ARGUMENTS ON PRELIMINARY MOTIONS. 



Mr, Phelps. — Three months before, and as I remarked a little while 

 ago, the Government were undonbtedly actnated in a large degree by 

 the oi)ini<)n assumed by Mr. Foster that in getting the British Commis- 

 sioners' Eeport we had substantially the whole of the eA-idence, and 

 that the question as to the submission of the evidence in chief in the 

 British Counter Case, though important, was practically one neverthe- 

 less, that we might not find it necessary to insist upon. Then three 

 months after comes the Counter Case which is before you, and we find 

 ourselves, as might have been anticipated, in the dilemma 1 have stated. 

 In asking you to reject the evidence it contains — and we believe we 

 could make it very clear that it ought to be rejected — we should only 

 be asking you to terminate the Arbitration at this late stage. We did 

 not take this responsibility. And therefore we must undertake to go 

 on and deal with this evidence in the best way we can. 



These are the grounds. Sir, upon which we protest emphatically 

 against the reception of this supplementary report or any other future 

 evidence bearing upon the questions in this case that are to be deter- 

 mined by the Tribunal. It will be for the Tribunal to justify, if it is 

 to be justified, the anticii)ation of the.United States, that they might 

 trust themselves without terminating this Treaty, as we should be com- 

 pletely warranted in doing, in the hands and the judgment of a Tribunal 

 selected not to represent one party or another, but to do justice. 



There is another objection to this Report to which I must briefly call 

 attention. I have discussed it thus far as being a piece of evidence, 

 just as I would have discussed it, had it been the deposition of a wit- 

 ness, and indeed, as I have said, a great deal of it is said to be made up 

 of the depositions of witnesses. 



Sir Charles Bussell. — That is not so. 



Mr. Phelps. — But there is a special objection in our apprehension in 

 the reception of this document, even if other evidence were now admis- 

 sible. If it were held that the case is open to the parties; and if it is 

 o])en now, it would be open till the award is made, and evidence might 

 be put in after the argument; if it were held that evidence is now 

 admissible, this document is not admissible. This Beport, with the 

 extraordinary weight and quality which is conferred upon it by this 

 Treaty, as a very cursory reference to the duties of this Commission 

 will show, should not be received. 



You will excuse me perhaps for reading again what has been read 

 several times, namely Article 9, because it has not been read with a 

 view to this point. "The High Contracting Parties having agreed to 

 appoint two Commissioners on the part of each Government to make 

 the joint investigation and Report contemplated in the preceding Arti- 

 cle VII, and to include the terms of the said Agreement in the present 

 Convention, to the end that the joint and several Reports and recom- 

 mendations of said Commissioners may be in due form submitted to the 

 Arbitrators, should the contingency therefor arise, the said Agreement 

 is accordingly herein included as follows: Each Government shall 

 appoint two Commissioners to investigate," — how? " (7o//./o/Mf/y with 

 the Commissioners of the other Government, all the facts having rela- 

 tion to seal life in Bchring's Sea, and the measures necessaiy for its 

 proper protection and iireservation. The four Commissi(niers shall, so 

 lar as they may be able to agree, make a joint Report to each of the two 

 Governments, and they shall also report, either jointly or severally", — 

 even in the event of disagreeing they are still authorised to report 

 jointly, though not required to do so, — "to each Government on any 

 X)oints upon which they may be unable to agree. These Reports shall 



