96 ARGUMENTS ON PRELIMINARY MOTIONS. 



diate facts must be proved by tlie testimony of witnesses, and, as we 

 could not call them before the Tribunal, we must do tlie best we could, 

 and procure their depositions. 



Well, how was this evidence to be presented. Upon looking to the 

 terms of the Treaty, we are attracted at once to the provisions of Arti- 

 cle 111 which I have already read and whicli relates to the])rintod Case. 

 "The printed Case of each of the two pa;'ties accompanied by the docu- 

 ments, the official correspondence and other evidence upon which each 

 relies shall be delivered in duplicate". Article IV provides for the 

 Counter Case and is to the effect : " The Counter Case shall be delivered 

 in duplicate, with the additional documents, correspondence, and evi- 

 dence in reply to the Case, documents and correspondence and evidence 

 so presented by the other party." Therefore it was plain enoui>h that, 

 at least, as to the question of rights derived from Eussia, and as to 

 the property questions, all the evidence should be presented in the 

 Case. A provision in the Treaty might suggest a jiossible doubt in 

 reference to the question of regulations. "If the determination of the 

 foregoing questions as to the exclusive jurisdiction of the United States 

 shall leave the subject in such position that the concurrence of Great 

 Britain is necessary to the establishment of regulations for the projjcr 

 protection and x^reservatiou of the fnr seal in, or habitually resorting 

 to the Behriiig Sea, the arbitrators shall then determine what concur- 

 rent regulations outside the jurisdictional limits of the respective Gov- 

 ernments are necessary, and over what waters such Ivcgulations should 

 extend, and to aid them in that determination, the Eeport of a Joint 

 Commission, to be appointed by the respective Governments, shall be 

 laid before them, with such other evidence as either Government may 

 submit." 



This, as one can easily see, suggests the inquiry whether this Report, 

 together with the other evidence referred to bearing on the question of 

 regulations should not be withheld until tlie Tribunal had reached a 

 determination that the concurrence of Great Britain was necessary, and 

 that suggestion is further supported by what has been so much dwelt 

 u])on by my learned friends on the other side — the phraseology in parts 

 of the Article IX of the Treaty which is to the effect that "the Kei)orts 

 shall not be made public until they shall be submitted to the Arbitra- 

 tors, or it shall ai>pear that the contingency of their being used by the 

 Arbitrators cannot arise."' "We saw, thei efore, that there was a certain 

 contingency in which these Eeports and other evidence bearing on the 

 question of regulations might not be used by the Arbitrators. Was it 

 the true construction of the Treaty that the Arbitrators were first to 

 determine the question whether concurrent regulations was necessary 

 or not and that until they had made that determination it was not in 

 order for them to consider any evidence bearing u])on regulations, and 

 not in order that any evidence should be submitted to them'? Was 

 that so? Well, if that were the case, if it was not in order, if it was not 

 regular, to submit the evidence on the question of concurrent regula- 

 tions until the Arbitrators should make a determination of that char- 

 acter it would follow necessarily that there was to be a double Arbi- 

 tration, a double hearing, and a double decision. When we look at the 

 provisions of the Treaty on that point it is very plain that there was but 

 one way in which evidence was to be submitted, and that was by the 

 Ocfseand the Counter Case, and but one Case and one Counter Case were 

 provided for. In the next place it was i)erfectly plain by the express 

 language of the Treaty that there was to be one written argument, and 

 only one written argument to embrace all the questions; and in the next 



