80 ARGUMENTS ON PRELIMINARY MOTIONS. 



Sir Charles Russell. — I contend respectfully, and I should not 

 have used langua<?e perhaps of so forcible a chaiacter to the Tiibmial 

 itself; but, of course, my argument involves the contention that tliat 

 istheonly mode in which the Tribunal can apiu'oach the question within 

 its powers under this Treaty. Tiic United Estates are, of course, equally 

 bound if my construction of the Treaty is a sound one. 



Xow it must be obvious. I do not think my learned friends have 

 made any attempt to conceal it — that the object of this motion is not 

 contined, — the object, the motive of this motion — to the question 

 whether this pai'ticular Supplementary Report is or is not to be admit- 

 ted. — My learned friend Mr. Phelps's argument upon the question as I 

 need not remind you took a very wide range, he gave peculiar impor- 

 tance to the motion especially in the beginning of his Argument yes- 

 terday in which he made ita])parent that this motion did involve, if not 

 directly, indirectly a question of very grave importance, as he quite 

 correctly styled it and which must some time or other be determined 

 by this Tribunal. 



For my own part I thought the motion advanced by my learned friend 

 was premature. 



I think so still. I think the time for his motion would have been 

 when we are approaching the question of Regulations and that he 

 might have reserved until that time the point whether this was a mat- 

 ter which the Tribunal should or should not have dealt with and we 

 would have been quite willing to have withdrawn this Supplementary 

 Report altogether for thepresentfrom the Tribunal, and to have reserved 

 to a more legitimate occasion the question whether it was or was not 

 proi^erly to be received. But now as the Tribunal has expended so 

 much time in the patient consideration of its reception probably it bad 

 better be discussed to the end. I say that my learned friend gave this 

 very marked importance to it because he yesterday said this: "Two 

 theories have been propounded by the respective parties" (That is at 

 the bottom of page 55 of the Report) " upon the construction of this 

 Treaty, in respect to the method of procedure. As I have remarked, I 

 believe this has been the subject of some diplomatic proceedings to 

 which I shall ask the attention of the Tribunal, and the views of the 

 other side have been communicated to us in a letter which accompanied, 

 I believe, the notice that this Report would be oftered so that we are 

 advised, and have been before advised, of the j^osition that the Counsel 

 of Her Majesty's Government take upon the subject. Their theory is 

 this: That there are to be, in effect, two hearings," two Arbitrations, 

 two awards (I am stating what Mr. Phelps attributes to us) " tirst ujion 

 the five questions that are first propounded in the Treaty, next in the 

 event that those questions sliould be decided in favour of the British 

 Government, a further hearing upon the subject of Regulations, and 

 that on that hearing fresh evidence, other evidence not theretofore in 

 the case is to be admitted. That is their view. We deny altogether 

 that the Treaty contemplates any such thing as two hearings, or that 

 the case discloses any x>ropriety for such a method of ])rocc(iure, I do 

 not say necessity but any propriety". And tlien he proceeds to argue, 

 and this is really the real bone of contention between us, — that uiy 

 learned friend contended that all these questions, — " Right" and " Reg- 

 ulaticms" — should be dealt with together, mixed up I know not how, 

 that you shall determine " liight" in view of arguments about "Regu- 

 lations", and "Regulations" in view of arguments about "Right", and 

 to these subjects which are in themselves in tludr very nature distinct, 

 marked by a clear dividing Hue, and a dividing line which as I ven- 



