ARGUMENTS ON PRELIMINARY MOTIONS. 57 



The contiii.i»eiicy was the contingency of the five questions being 

 decided in the fiishion which should render the concurrence of Great 

 Britain necpssary. That was the contingency contemphited in the first, 

 as it was the contingency contemplated in the last part of Article IX. 



Indeed, the latter connection in which the word "contingency" is 

 used even more strongly makes the force of this contention which I am 

 submitting apparent, because the words are: "These reports shall not 

 be made public until they shall be submitted to the Arbitrators, or 

 (until again understood) it shall appear that the contingency of their 

 being used by the Arbitrators cannot arise." Not the contingency of 

 there being an arbitration, which arbitration by the preceding provi- 

 sions is already constituted. 



If it had not been for the introduction of certain other topics, I 

 should, Sir, have felt myself justified in sitting down; but I suppose 

 that I ought to refer to the other toi>ics that have been dealt with by 

 my learned friend. 



I>et me, however before I leave these Articles, make some reference 

 to a very — if I may respectfully say so — acute comment thrown out by 

 one of the members of the Tribunal, a comment which I confess seems 

 to me, as far as I can Judge, to be well founded in one particular. I 

 understood that comment to amount to this — I do not regard it as the 

 judgment even of the individual member of the Tribunal; but I under- 

 stood it to mean; that the report contemplated by Articles VII and IX, 

 to be a report within the meaning of those Articles, ought to be a 

 report which might turn out to be a joint or a several report, but which 

 whether a joint or a several rejiort, should be founded upon a joint investi- 

 gation. I understood that to be the suggestion. 



Senator Morgan. — I intended to put that as an inquiry. 



Sir Charles Kussell. — / am not at all sure that that is not perfectly 

 sound. I am not at all sure that when we come to examine these reports 

 of the Commissioners on both sides it will not be found that they will not 

 stand the test; and that applies equally to the reports of the Commis- 

 sioners on the part of the United States and to the reports of the Com- 

 missioners representing or appointed by Great Britain. 



Mr. Justice Harlan. — I suppose you are familiar with the report 

 now being talked of — the supplemental report? 



Sir Charles Russell. — Yes. 



Mr. Justice Harlan. — Can you tell us — for we have not yet had it 

 before us officially— whether it is a separate report, based upon the 

 joint investigation that was made in 1S91, or is it a report based upon 

 a subsequent independent investigation in which both Commissioners 

 participated? 



Sir Charles Russell. — As far as I can judge, partly on one, and 

 partly on the other. My learned friend said that he had not read the 

 report; and indeed in the letter by which the United States Agent, my 

 friend Mr. Foster returned the report, it was stated that it was unread. 

 Tliat being so, my learned friend Mr. Phelps said that somebody or 

 other who I do not know, has told him that it contains a number of 

 new dei^ositions. AJl 1 can say is that it is not an accurate description 

 of it. 



Lord Hannen. — Sir Charles, will you allow me to call your attention 

 to a passage in the seventh Article which I do not think you have com- 

 mented upon? What construction and efiect do you give to those last 

 words " witli such otlier evidence as either Government may submit"? 



Sir Charles Russell.— I am coming to that, sir. 



Lord Hannen. — I beg your i)ardon. 



