64 ARGUMENTS ON PRELIMINARY MOTIONS. 



friend's contention is that all this ought to have been in the Original 

 Case. You iollow, I think, that that is an answer to the objection. In 

 other words the case is to be delivered according to the terms by the 

 3rd of September, though we only got our authority to send to these 

 Islands under this Article in April of 1892. We get our authority 

 under the Convention in Ajiril of 1892. 



Senator Morgan. — Was anyone sent to the Islands? 



Sir Charles Russell. — Oh yes, and his Report appears in the 

 Counter Case. 



Senator Morgan. — Ue got there? 



Sir Charles Russell. — Oh yes — they were sent by both sides, and 

 both sides have submitted these Reports in their Counter Case. Both 

 have done the same thing. My friends, as clearly as we have, have 

 dei)arted from the idea, that the whole case was to be put out in the 

 original Case. They have chosen, ot course, to say that a gi-eat deal in 

 their Counter Case which is new is by way of answer, but then you can 

 say that anything is by way of answer. It is strictly correct in sense 

 one — everything may be said to be by way of answer, but only in tliat 

 sense. But the question of Regulations stands upon an entirely differ- 

 ent footing, which I have endeavoured more than once to make clear, 

 and if I have not succeeded in making it clear up to this point, I should 

 despair of making it clear by any mere process of discussion. 



But now. Sir 1 want to refer to another matter. My friend Mr. Phelps 

 says "Oh but there is another objection that 1 have to the admissibility 

 of this Supplementary Report"; and that objection he says is this: the 

 Article provides for a Report, if they can agree, to be made jointly — 

 if they cannot agree, for joint and several Reports; and he says, hav- 

 ing made one Report, which we have already furnished to them under 

 the circumstances which I will explain, they cease to be vested with 

 authority to make any other Report. They became jmicti officio^ my 

 friend would say. Well, Sir, I do not care to stop to consider even that 

 question. I myself do not see any reason why they may not make 

 several Reports if they are so minded. I do not see anything in the 

 Treaty which compels them to exhaust their functions in one Report; 

 but let that pass. I base the claim to the admissibility of this docu- 

 ment, not by reason of any sanctity attaching to it, because it comes 

 from the Commissioners, but as being evidence — "other evidence" within 

 the meaning of Article VII directed and intended to inform the minds 

 of this Tribunal upon the question of Regulations when and if that 

 question shall arise. 



Senator Morgan. — But, Sir Charles, it might still be evidence might 

 it not, and not have found its way into the record in due season according 

 to the Treaty. 



Sir Charles Russell. — Perfectly, that is my whole contention, Sir. 

 You have put, in one sentence, my whole contention, that, as regards the 

 questions of Regulations, there is, as contained in Article VII, provision 

 which has not relation to the rest of the Case; that is to say, ichen the 

 Arbitrators come to exercise judgment, which is not judicial, which is not 

 juristical, then they are to seelc such evidence as either Government can 

 place at their dispositioti — any matter ichich will have the tendency to affect 

 or help their judgment upo7i the question. 



Senator Morgan. — I beg to say that I have been misunderstood if I 

 am supposed to have stated in any way that the power to ordain Hegu- 

 lations exists only upon a certain condition and to be exercised at a 

 certain time. 



Sir Charles Russell. — ^I am not sure that I follow you, Sir. 



