ARGUMENTS ON PRELIMINARY MOTIONS. 53 



Sir Charles Russell. — Sir, so far I have dealt only with the clear 

 and marked divisions of the questions and the clear and marked dis- 

 tinction as to the functions which this Tribunal is called upon to exer- 

 cise in relation to that marked division of the question. So far I have 

 said nothing about the Commissioners. It will be apparent to the 

 Tribunal that the reference to the Commissioners appears in the Treaty 

 in an inverted order. That is to say that Article VII refers to the part, 

 so to speak, that their opponents are to play in the controversy when it 

 becomes a question of Eegulations before the Tribunal whereas it is in 

 Article IX that we find the constitution of the Commission itself; and 

 therefore, with the assent of the Tribunal, I would refer to Article IX 

 first as being, I think, in the more natural order. 



Article IX provides that : 



The Hiffli Contracting Parties have agreed to appoint two Commissioners on the 

 part of eacli Goverument to make the joint investigation and report contemplated in 

 the preceding Article VII and to include the terms of the said agreement in the 

 present Convention to the end that the joint and. several reports and recommenda- 

 tions of the said Commissioners niay be. 



Not ''shall be " but " may be " : — " In due form submitted to the Arbi- 

 trators, should the contingency therefor arise." 



Thereupon it proceeds: "That each Government is to ajJi^oint two 

 Commissioners to investigate conjointly." And further: 



The four Commissioners shall, so far as they may be able to agree, make a joint 

 report to each of the two Governments, aiui they shall also Report either jointly or 

 severally to each Government, on any points upon which they may be unable to 

 agree. 



Then follows the provision that they are not to be made public until 

 submitted to the Arbitrators, or until it shall aj^pear that the contin- 

 gency of their being used by the Arbitrators cannot arise. 



JSTow, first, it is clear from Article IX, and still more clear from Arti- 

 cle VII that the functions of the Commissioners have relation, and rela- 

 tion solely, to the question of Kegulations. Now, is that in dispute? 

 I do not think it can be disputed. I do not understand my friend Mr. 

 Phelps to have suggested the contrary. 



Mr. Carter. — I do not know that Sir Charles expects an answer to 

 that. 



Sir Charles Russell. — Merely yes or no. I anticipated rightly 

 that there was no contention about that. 



Mr. Carter. — There is; we shall not agree to that. 



Sir Charles Russell.— X beg your pardon. I understood you to 

 agree. Now, I understand it to be suggested that the Commissioners 

 reports have relation to other matters than the matter of Regulations. 

 That is what I understand. 



Mr. Carter. — They relate to everything that they are pertinent for. 



Sir Charles Russell. — Yes; but the point is what are they perti- 

 nent for? To that I get no answer. Either the functions of the Com- 

 missioners relate to Regulations, or they do not. What is the position 

 that the States Counsel take. In certainly understood — I may have 

 been wrong, of course I should not seek to bind my friend Mr. Carter 

 by any statement that my friend Mr. Phelps made; — but my friend Mr. 

 Phel])S in distinct terms said that this was the ordinary case in which 

 one question being submitted one way, other questions might, become 

 unnecessary to consider at all : therefore, if the first five questions were 

 decided one way, the question of Regulations might become wholly 

 immaterial. But I do not seek to rely upon any admission, qualified or 

 absolute. I rely upon the Treaty itself. What is the matter to which 



