ARGUMENTS ON PRELIMINARY MOTIONS. 91 



tries, should have been, it is believed, kept distinct from that part which bore on tlie 

 questions of riglit, and that the Litter should alone, in the first instance, have been 

 submitted to the Arbitrators; the former, namely, tliat part relating to Regulations, 

 only -when the contingency therefor arose; or, in other words, when the determina- 

 tion of the questions of exclusive right had been arrived at. 



And that is a statement, if I iinderstaud it, that, according to the 

 coiiteiiii)hitiou of the Treaty, wliatever rehited to the subject of reiiii- 

 iatioiis was not to be submitted, either to the Tribunal or to theo])posite 

 l)arty, until a determination had been reached by the Tribunal u])on 

 ■what is called by my friends upon the other side the questions of right; 

 that then it was to be laid before the Tribunal, for the first time. 



How does that defend the submission of this paper? That contiu- 

 gency had not yet occurred. Tlie Tribunal has not as yet reached a 

 decision upon what are called the questions of right, or ui)on any of the 

 questions. It had not determined that the contingency had arrived 

 u[)oii which the question of Regulations should be considered; and 

 therefore, in accordance with the views of the counsel themselves, the 

 fjime had not as yet arrived when it was proper to submit to the Tribunal 

 any such paper as this, if it bore, as they said it did, ujjon the question 

 of Regulations. 



They then proceeded: 



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

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

 by the United States in Mr. Foster's letter to Mr. Herl)ert of Se])temlier L!7th 1892. 

 In deference to those representations, and in order to facilitate the ])rogre8s of the 

 arbitration. Her Majesty's Government, while maintaining the justice of their con- 

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

 separate report of the British Commissioners and its appendices, reserving at the 

 same time their right, as stated in Lord Rosebery's dispatch to Mr. Herbert of Octo- 

 ber 13th 1892. 



"Reserving their right," that is, their right to submit a further report, 

 or further evidence, at the time when the contingency, according to their 

 view of it, was reached; namely after the Tribunal had announced a 

 decision of a certain character upon the questions of exclusive juris- 

 diction. They said they reserved that right; but whatever right they 

 might or could have reserved, the contingency mentioned in that reser- 

 vation, namely, the decision by this Tribunal of a certain character, had 

 not arrived, and therefore the submission of the document at the pres- 

 ent time was not defended by that reference to the correspondence 

 between Lord Rosebery and the United States Government. 



Further they say : 



The Government of the United States, in presenting to the Arbitrators with their 

 original Case the separate re|)ort of the United States Commissioners had, in the 

 opinion of Her Majesty's Government, departed from the mode of procedure con- 

 templated by the Treaty. It was in pursuance of the understanding 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 Suiiplementary Re))()rt of 

 the British Commissioners which was referred to on page 166 D of the British Counter 

 Case. 



I do not suppose that there was any tnidemtanding effected by the 

 correspondence referred to; but that will be the subject for future 

 observation. 



The letter proceeds: 



At the proper time, Her Majesty's Government will siibmit to the Arbitrators that 

 tliey are entitled to use this Supi)lcnientary K'cport, and tliey are (|uile willing that 

 copies should remain in the hands of the rcpiescntatives of United States without 

 prtijudice to any objection they may desire to r.iise. 



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. 



