86 ARGUMENTS ON PRELIMINARY MOTIONS. 



not in all events to go before the Arbitrators, because in Article YII 

 they are to be laid belbre them only in the event of their having to 

 consider Regulations: and they are to consider Eegulations, and to 

 have power to consider Regulations, only if the deteruunation of the 

 foregoing questions renders it necessary. They are not to have it laid 

 before them or to be used by them until the contingency in Article IX 

 occurs, and the real turning x)oint in this controversy depends upon, 

 and my learned friends felt it, what is that contingency mentioned in 

 Article IX? If the contingency is that which we say it is, then I think 

 there can be no doubt that our construction of the Treaty is the correct 

 one. We say that contingency is not the contingency of any Arbitra- 

 tion at all, because we say the Treaty does not say so. The Treaty 

 says that the contingency is the determination of the first five questions 

 in the particular way. We say, in the next place, it can not be the con- 

 tingency of any Arbitration at all, because tliat would involve the 

 assumption that if the Commissioners agreed as to the Report, that that 

 Report upon the matter of Regulations was to be binding upon and to 

 take the place of a decision of this Tribunal. But Article VII in clear 

 and em]>hatic terms shows that that is not true because it explicitly says 

 that it is to aid the Tribunal in the determination of the question. If 

 I am right in that, what is the position of things'? Then we reach a 

 point in the controversy at which alone, and for the first time, the Tri- 

 bunal are entitled to take into their consideration the question of the 

 Report as bearing upon Regulations — The first time at which they are 

 entitled to take into account anything bearing upon Regulations. We 

 have had the machinery for the first five questions dealt with in the 

 antecedent Articles — questions of right. They are got out of the way. 



We come to questions no longer questions of right, — questions of 

 accommodation; questions of convenience; questions of expediency; 

 questions of justice; questions of equity; questions of general consid- 

 eration ; not of the right of A. or of B., but of the right of A. and B. 

 and others in this question, — a question which does not depend upon 

 legal right at all; and when you have got to that point then it is that 

 the Report is to be laid before you with such other evidence as either 

 Government may submit. Again, I warn this Tribunal against its being 

 supposed, when I urge with insistence this point, that I ani holding out 

 to this Tribunal any prospect of a reopening of tliis question and of a 

 branching out in to new enquiries and into large fields of evidence, Ko ; 

 as I have told you, so far as I know, so far as I believe, this Sup]>le- 

 mentary Report, so far as we know, is ended and is closed. If they 

 have anything to say when they see that supplemental Report, to answer 

 it, to explain it, to contradict it, we do not olyect to their having that 

 right. By all means let them read it; let them judge of it; let them 

 see if it is a matter ('a])able of answer or explanation, and act accord- 

 ingly; and when my learned friend, in solemn and impressive tones, 

 spenks of the grave injustice of having fresh matter put upon him 

 which he has no opportunity of answering; allow me, I entreat this 

 Tribunal, to ask them to understand this and see how little reason there 

 is to suggest any special hardship or to suggest any real injustice. 



I have before me their Counter Case. I am making no complaint 

 about it or its contents. I may have to make comments hereafter; but 

 I find in the Counter Case at page 207, what "^ On the 18th of A uly 1802 

 instructions addressed to a Capt. Hooper of the Revenue Marine cutter 

 "Corwin", instructing him to proceed to the Pribilof Islands and to 

 make certain inquiries and to report the result of those inquiries; and 

 the result of his inquiries, accordingly, appears in four reports, the first 



