ARGUMENTS ON PRELIMINARY MOTIONS. 55 



of the print, at the end of the second hirge clause, about the middle of 

 the i>aue: "These re])(nts, says tlie Treaty, shall not be made public 

 they siudl be submitted to the Arbitrators or it shall be considered". 



Tliat the contingeiu\y of their being used by the Arbitrators cannot 

 arise. It is said tiuit that contingency refers to the contingency of the 

 decision. 



"It is said" ought also to precede the nest sentence. 



"It is said the contingency is, whether the Arbitrators shall decide 

 in favor of or against the claims of right which the United States 

 (lovernment have set up. We regard that as altogether erroneous. It 

 is the contingency of the Arbitration itself— the contingency of there 

 being any arbitration, not the contingency of the decision on the pre- 

 vious questions that the Arbitration shall reach, if it takes place". 



That meaning is sufiticiently obvious; but it is made clearer if the 

 Tribunal will refer to page 50, the last sentence but two at the bottom 

 of the page. You will observe, sir, the sentence beginning "IJoesit 

 refer ". 



"Does it refer, as my learned friend will contend, to the contingency 

 of the Tribunal deciding against the United States on the live questions 

 that are first propounded, or does it refer to the contingency of there 

 being aviy arbitration at all*?" 



That is it say, those who argue on behalf of the Government of the 

 Queen contend that it depends on the contingency of the decision in a 

 particular way of the live questions, "I", says Mr. Phelps, represent- 

 ing the United States, "contend that the contingency referred to is the 

 contingency of there being any arbitration at all". The issue is there- 

 fore clearly joined betAveen us. My learned friend has stated with great 

 clearness, what he means is the construction. He adopts one construc- 

 tion; we adopt the other. 



And finally, the last reference I shall trouble you with, Sir, is the last 

 paragra])h but one on page 51, of the short hand reports where there 

 is an interruption by one of the Tribunal putting a question. My friend 

 has concluded the sentence which ends, or begins a paragraph, I am 

 not sure which : 



" If the Commissioners agreed, there would be no occasion for any 

 Arbitration." 



This is still following out the idea that the contingency twice referred 

 to in Article IX referred to the contingency of there being no Arbitra- 

 tion at all. 



"If the Commissioners agree," says Mr. Phelps, "there would be no 

 occasion for any arbitration". Then Lord Hanneu asks the question. 



"Wliere is that embodied in the Treaty! Is it anywhere embodied in 

 the Treaty, that if the Commissioners agreed the Arbitration would 

 not go on?" 



This is a very pertinent matter. My learned friend's answer is. 



"No, your Lordship, it is not." 



Now, therefore, the question is the question that is decisive in this 

 matter, as it seems we both think. — What is the meaning of the word 

 "contingency" in Article IX? 



Now, let me guard myself upon one matter of construction. This is 

 a question of the construction of the Treaty; and although I do not 

 deny that on points where the Treaty is ambiguous it may be, and has 

 been so regarded by previous tribunals constituted like this, admissible 

 to refer to the negotiations which led uj) to the Treaty, in order to define 

 the subject matter of the Treaty, the subject-matter referred to the 

 tribunal, etc., I deny that where the Treaty itself is clear and unam- 



