ARGUMENTS ON PRELIMINARY MOTIONS. 85 



the view of Her Majesty's Governmeut tliattlie mode of procedure con- 

 templated by the Treaty has not been accnrately followed. While all 

 the material bearing ou the whole subject matter in dispute, intended 

 to be used by either party was to be submitted to the other party, that 

 part of such material wliich bore only on the question of regulations, 

 and particularly the Eeport or Keports joint or several of the Commis- 

 sioners of the two countries, should have been, it is believed, kept dis- 

 tinct from that part which bore on the questions of right; and that the 

 latter," — that is to say, as to right, — "should alone in the first instance 

 have been submitted to the Arbitrators, the former, namely that part 

 relating to regulations, only when the contingency therefor arose, or in 

 other words when the determination of the questions of exclusive right 

 had been arrived at". 



It was upon this principle that the original Case of Great Britain was 

 framed, and this course would have been followed but for the objections 

 raised by the United States as stated in Mr. Foster's letter to Mr. Her- 

 bert of September 27th, 1892. In deference to those representations 

 and in order to tacilitate the progress of the Arbitration, Her Majesty's 

 Government, while maintaining the justice of their contention, furnished 

 to the Government of the United States and to the Arbitrators, the 

 Separate Eeport of the British Commissioners and its Appendices, 

 reserving at the same time their rights, as stated in Lord Kosebery's 

 despatch to Mr. Herbert of October 13th, 1892. The Government of the 

 United States in presenting to the Arbitrators, with their original Case, 

 the se])arate Eeport of the United States Commissioners had, in the 

 opinion of Her JMajesty's Government, departed from the mode of pro- 

 cedure contemplated by the Treaty. It was in pursuance of the under- 

 standing contained in the correspondence above referred to, that Her 

 Majesty's Government furnished to the Agent of the United States, and 

 to the Arbitrators, the Supplementary Eeport of the British Commis- 

 sioners which was referred to on page IGG D. of the British Counter 

 Case. At the proper time Her Majesty's Government will submit to the 

 Arbitrators that they are entitled to use this Supplementary Eeport, 

 and they are quite willing. — I call special attention to this — "that 

 co[)ies should remain in the hands of the Eepresentatives of the United 

 States, without prejudice to any objection they may desire to raise. 

 The Government of Her Britannic Majesty believe that the Arbitrators 

 will desire to have at their disposal any trustworthy information which 

 may assist them upon the questions referred to them for decision." 



We were willing that they should without prejudice take this Eeport. 

 If they had taken it and read it perhaps we might not have had this 

 motion at all, but my learned friend preferred to have it returned, as 

 Mr. Foster says, unread, and then to rely upon the statement derived, 

 I know not whence, that it contains fresh depositions. It contains no 

 depositions — no depositions whatever; and I do think that if even now 

 my learned friends had looked at it, they would have probably not felt 

 bound to raise the question so far as this document is concerned. But 

 I am fully aware, as I have already made apparent, that that is not the 

 real question that is here involved — that is not the motive of this 

 motion — the mere rejection of this Supplementary Eeport. It is the 

 determination of that question of procedure to wliich I have adverted 

 as giving, in Mr. Phelps's view, and I agree with him, importance to this 

 motion. 



I do not desire to occupy your time. Sir, longer; but I must be per- 

 mitted in two sentences to "sum u]) the short result of my argument. 

 First, it is clear that the Eeport or Eeports of the Commissioners are 



