, 56 ARGUMENTS ON PRELIMINARY MOTIONS. 



biguous, tbat the reference to what Lord Salisbury may have thought 

 or said or written in his Cabiuet, the question of the Treaty being- a 

 matter of royal prerogative and therefore of executive actiou in Great 

 Britain, can be invoked in the construction of the Treaty; and equally 

 we know that by the Constitution of the United States the head of the 

 executive there cannot bind the country by a Treaty, but that it must 

 be a matter approved by the Senate or approved by a certain propor- 

 tion of the Senate. Agreed; but we have no more to do with discus- 

 sions in Senate or out of Senate, or as to what influenced this Senator 

 or that Senator in the view that he took in giving his vote for or against 

 the aftirmation of the treaty than we have to do with the thoughts, 

 opinions, writings, sayings of Lord Salisbury discussing the matter with 

 his colleagues or conveying his views by diplomatic correspondence to 

 the representatives of the Crown in foreign countries. 



Then is this clear? Is it a matter of doubt what this "contingency" 

 means? Let us see the connection in which it is used: 



"The Contracting Parties have agreed to appoint two Commissioners 

 to report on the part of each Government to make the joint investiga- 

 tion and to the end that the joint and several rei^orts and recommen- 

 dations — " 



Can it be supposed that the recommendations had anything to do 

 with the question of decision and legal right? 



"of said Commissioners may be in due form — " 



What? 



"submitted to the Arbitrators, should the contingency therefor arise." 



It is not submitted to a tribunal of arbitration ex post facto to be 

 constituted, but it is subinitted to the Tribunal which by this Treaty 

 is constituted; and therefore to suggest that it was in the contempla- 

 tion of the parties to this Treaty that the contingency referred to, as to 

 there being arbitration at all, cannot be supported with any show of 

 reason whatever. The Tribunal is constituted by this Article. 



But is there anything further to make that clear ? If my friend is right 

 in his contention, it follows that it was also contemplated that if the Com- 

 missioners should agree in their report — and that is what my learned 

 friend does not shrink from saying — that if the Commissioners should 

 agree in their report, there is to be no arbitration at all. There are 

 two answers to that. The first answer is that which you will already 

 have gathered from my argument on another ])oint; namely: that the 

 Commissioners had nothing to do with the questions of right, and 

 that Article VI expressly stipulates that there shall be a distinct deci- 

 sion by the Arbitrators upon those live questions. That is answer 

 number one. 



Answer number two, equally clear and equally conclusive: That if 

 the Commissioners had agreed in their report, and had agreed in their 

 recommendation, not only does this Treaty not make it obligatory upon 

 the Arbitrators to accept and act upon that report, but it in express 

 terms shows what was to be the relation of that report to their consid- 

 eration, and to their decisions on the question of regulations. Article 

 VII has in express terms said that the report of the Commissioners 

 was not to rule them, was not to be a matter which they were to ado[)t 

 as a matter of course, without exercising their own judgment upon it, 

 but was a matter to aid them in their determination upon the question 

 of regulations. 



Therefore my answers, as I submit, are clear and complete. It was 

 not the contingency of there being an arbitration at all, for the two 

 reasons I have given, whi(;li I hope 1 have made intelligible to the 

 Tribunal, and which I do not desire to repeat. 



