78 ARGUMENTS ON PRELIMINARY MOTIONS. 



It follows as a necessary consequence that if the Arbitrators should 

 deteniiiiie that the concurrence of Great Britain is not necessary to the 

 establishnieut of regulations for the protection of seal life, the seal fish- 

 ery would theuceforth be exclusively regulated by the municipal law of 

 the United States, and no "concurrent" regulations would be neces- 

 sary. Therefore Article VII provides that if it shall be decided that 

 the concurrence of Great Britain in any such regulations is necessary, 

 the Arbitrators shall then determine what those regulations shall be. 

 Article IX provides that the Joint and several Keports of the Commis- 

 sioners may be submitted to the Arbitrators "should the contingency 

 therefor arise"; and further that the Commissioners shall make a Joint 

 Keport "so far as they may be able to agree", and that their lieports, 

 joint and several shall not be made public until they shall be submitted 

 to the Arbitrators, "or it shall appear that the contingency of their 

 being used by the Arbitrators cannot arise". And then in order that 

 I may spare the Tribunal the full reading of this document, because he 

 proceeds to justify that view, I would ask the Tribunal to allow me to 

 go down to about the middle of the page beginning' "The contingency". 

 "The contingency of such evidence being used could not arise till after 

 the decision of the Arbitrators on the five special questions. It was 

 quite unnecessary, therefore, to discuss during the negotiations, and by 

 way of anticii)ation, the mode in which that evidence should be brought 

 before the Arbitrators. The contingency of that evidence being used 

 before the Arbitrators might never arise, and, if it did, the mode of its 

 ])resentation would be a matter of procedure for the Tribunal to settle. 

 Indeed, any discussion on that point would have been premature, as 

 anticipating a decision adverse to the United States on the five special 

 questions". And tlien he concludes by further references which I will 

 not trouble the Tribunal with. 



Now I pass from that corresi^ondence and giving equal credit to Mr. 

 Blaine for the very negative view that he expresses — the very negative 

 view — and claiming eqnal credit for the bona fides of the dissent which 

 Sir Julian Pauncefote has expressed, I recur to what I ventured to sub- 

 mit to this Tribunal yesterday, namely that, although it may be right 

 to refer, where the question is a question left in doubt upon the con- 

 struction of the Treaty — in any serious doubt — to negotiations which 

 led up to it, and though that is certainly very frequently a matter or a 

 mode of construction, or an aid to construction, 1 should prefer to say 

 often and properly resorted to if the question arises on the construction 

 of the Treaty of Arbitration as to the question of jurisdiction, as to the 

 subject to be dealt with, as to the limits of the powers, and so forth, yet 

 I admit, when you have a Treaty which as I submit on the face of it is 

 intelligible and admits of no real serious doubt of construction, the 

 application of any reference to antecedent diplomatic correspondence is 

 at least a doubtful proceeding. You must construe the document upon 

 intelligible rules with reference to what the document itself has said. 

 1 pass from that and I have to make a reference to another point even 

 more remote which my learned friend Mr. Phelps, thought proper to 

 make, or thought himself Justified in making, still upon the point of 

 the contingency referred to and in order to justify his view that the con- 

 tingency referred to was the contingency of no Arbitration at all being 

 held, and it will be in the recollection of the Tribunal that on page 52 

 of the ])rinted note of the day before yesterday's proceedings, my 

 learned friend ]\!r. l*hel])s, referred to Sir Julian Pauncefote's letter to 

 Mr. Blaine on the 29th April, 1890, which conteniplate<l a scheme of 

 Regulations, and a scheme of Kegulations only. My learned friend said 



