54 ARGUMENTS ON PRELIMINARY MOTIONS. 



these reports, to use my friend Mr, Carter's slightly dubious expression, 

 are pertinent"? This at least is clear, that Article IX coiiteiiii)lates a 

 coutiugeucy in \\^hicli their reports shall not be used. So far, 1 think, 

 we agree. 



Then what is the function that the report is to i)lay and in reference 

 to what questions'? For that we have to look to Article VII: 



If the (leterniiiiation of the foregoing ([iiestions as to the exchisive juiisfliction of 

 the United States shall leave the subject in such positiou that the concurrence of 

 Great Britain is necessary. 



Then the Arbitrators shall determine that question. 



"To aid them in that determination, a report of a Joint Commission, 

 to be appointed by the respective Governments shall be laid before 

 them " — the next i)hrase I will leave till a later period of my argu- 

 ment — "with such other evidence as either Government may submit." 



It really passes my humble capacity to see what is to be said in 

 answer to the proposition which I respectfully affirm and submit, that 

 Articles VII and IX make that clear to demonstration which, up to this 

 moment, I did not think was even in controversy between us, that the 

 appointment of the Commissioners, to begin with, and the report of the 

 Commissioners consequent upon their ap])ointment, was to serve one 

 purpose and one purpose only — to aid the arbitrators, should the con- 

 tingency arise, in determining the regulations which they are to ordain. 



I am a little surprised that there should be any doubt about that. I 

 cannot think there is any real doubt in the mind of any one of the 

 Tribunal whom I am now addressing. But of course I go further than 

 that— much further than that. I say that Article VII shows, and shows 

 for a very good reason, that when you come to the question of liegula- 

 tions you are following and observing an order quite distinct from that 

 which you are observing when you are dealing with the question of 

 right, because you have got what might be called self contained pro- 

 visions in Article VII, showing what the Tribunal may have regard to 

 in the consideration of the question of Kegulations. What is that"? 

 They are to be aided by the Eeport of the Commissioners; and what 

 else? "And this report shall be laid before them with such other evi- 

 dence as either Government may submit." 



Keally one has a difficulty in knowing what is the construction put 

 opposite to this. My friend, Mr. Phelps, says that tlie fallacy in our con- 

 structions depends upon the misconstruction which we place upon the 

 word "contingency" in Article IX; and 1 agree — for I wish to c(nne to 

 close quarters upon the question — that if my friend's construction, of 

 that word "contingency" in Article IX is tlie correct one, he has 

 advanced a long way in the support of his argument; but equally by 

 contrary if his construction is the erroneous one it is fatal to his argu- 

 ment. 



Now, the first thing to be observed is this: That the word "con- 

 tingency" occurs twice in Article IX. It occurs in the first clause; it 

 occurs in the later clause. Is it to be believed that it occurs in those 

 two clauses in a different sense and that the same word used in the same 

 article has one meaning in one part of that Article and another mean- 

 ing in another part? Xo, I do not think that will be urged; but I am 

 not asking for an answer. I do not think that will be urged; but what 

 is its meaning in the position in which it first appears? 



I think, before I submit what the Tribunal has of course already 

 anticipated, as to the meaning which we attribute to it, it is best to see 

 what my friend, Mr. Pheli)s, says about it. 1 am reading from the print 

 of the shorthand note of the argument yesterday evening, at page 47 



