ARGUMENTS ON PRELIMINARY MOTIONS. 45 



not be made public", and so forth. The investigation was to be a joint 

 investigation. It was not the absurd provision of the Government 

 creating by Treaty what each might have created for itself without 

 Treaty, — an ex parte mission to Alaska to prepare its Case. It was 

 not a provision that each Government shoulcl send two attorneys up to 

 Alaska to gather evidence on its side, leaving the otber side to take 

 care of itself in the same way or in any other way it thought proper. 

 That needed no Treaty. It was to appoint Commissioners, whose posi- 

 tion corresponded to your own, to investigate jointly for the benefit of 

 both Governments the main facts underlying the questions in dispute; 

 to report jointly if they agreed, and jointly if they chose if they were 

 unable to agree, or severally; and then it was provided most properly 

 that the conclusions and recommendations and discoveries of such a 

 joint Tribunal, I may almost call them, — a Commission joint in its 

 character, in which both Governments were represented — that those 

 should be laid before the subsequent Tribunal, if it became necessary 

 to have a subsequent Tribunal. It is most jjroper that tliey should be 

 laid before you, but the force they are likely to have when they come 

 before you will very likely depend upon the judgment of the Arbitra- 

 tors as to how far they are or are not in compliance with the letter and 

 the spirit of the Treaty. 



Now, the function of those Commissioners was exhausted when these 

 Keports were made, as far as the other Government was concerned. 

 They hec&mefuncti officio when they made their reports and submitted 

 them. There is no provision in the Treaty and no contemplation, that 

 half the Board after that, without the knowledge or concurrence of the 

 other half, should either make another expedition up to Alaska or should 

 sit down in London and make an investigation, and make a large body 

 of evidence and a new Keport on those questions, and that, at a late 

 stage of the Case, that should come in and be laid before you as evi- 

 dence. The whole spirit of the Treaty rebuts and repudiates any such 

 idea as that. What they chose to do for their own Government after 

 that is no affair of ours. They may make as many Eeports and inves- 

 tigations for their own Government, if their Government choose to 

 emj)loy them to do so, as they like. 



Mr. Justice Harlan. — Do you know when the investigation was made 

 upon which this supplemental Report was based? 



Mr. Phelps. — No better than Your Honor knows. I know nothing 

 at all about it. We never heard of this supplemental Eeport till the 

 same time that you did. 



Sir Charles Kussell. — I beg you pardon; you had notice in the 

 Counter Case that we should present such, but only on the question of 

 Eegulationg, not on the incidents of seal-life. 



Mr. Phelps. — I never read it. It is undoubtedly there if my learned 

 friend says so; but it never attracted my attention. 



Mr. Justice Harlan. — What you mean is, that the document was not 

 seen by you ? 



Senator Morgan. — It must have been in existence when the Counter 

 Case was handed in, if an allusion is made to it in the Counter Case. 



Lord Hannen. — It is only reserving a right to y)resent it in future. 



Senator Morgan — I spoke of the existence of the Report. It must 

 have been in existence at the time that the Counter Case was delivered. 



Sir Charles Russell. — When the time comes, I will explain it 

 exactly. 



Mr. Phelps. — There is a great deal more to be said about these 

 Reports; but not now. That arises on the merits of the Case, and I do 



