116 ARGUMENTS ON PRELIMINARY MOTIONS. 



tlie evidence is to be laid before the Tribunal at some future time and 

 in a manner for which the Treaty makes no distinct provision whatever. 

 It appears upon the face of the Treaty tliat most carelnl provision was 

 made for the submission of evidence to each party by the other, to the 

 end that they should have an opportunity of answering it. We have 

 already seen that the only disputable part of the evidence, the only 

 part upon which it is to be ap])rehended that there is to be any con- 

 siderable dispute, and, therefore, the only part which there is any 

 necessity for answering, is in reference to the nature and habits of the 

 seal, and seal life, and so forth. Now, the contention on the other side 

 is that, as to the part as to which there is no im])ortance in having an 

 opportunity for rejdy, most careful provision is made for giving an 

 opportunity for reply; but, as to that part of the case where the evi- 

 dence is likely to be contradicted and, therefore, as to which there is 

 particular and special necessity for an opportunity for reply, the Treaty 

 has failed to make any provision. That is so unreasonable, so contrary 

 to the purposes of the i)arties, that it seems to me it should be imme- 

 diately rejected, unless the language of the Article is so distinct and 

 unequivocal as to leave no room for doubt. When we look at the lan- 

 guage of tlie Article, we perceive that it is not so distinct and unequivo- 

 cal, for it does not say that this Report of the Commissioners and other 

 evidence shall then he laid before the Arbitrators, but simi)ly that it 

 shall be laid before the Arbitrators, and the question of the time when 

 it is to be laid before the Arbitrators is left undetermined and unex- 

 pressed by the Article. How, then, are we to determine the time when 

 this disj)utable evidence is to be submitted ? How are we to determine 

 that? By looking to the purpose and spirit of the Treaty; and when 

 we find that distinct provision has been made for the introduction of 

 evidence, distinct provision made for giving the two sides an oppor- 

 tunity each to answer the evidence and allegations of the other, we 

 must at once come to the conclusion, as 1 resj)ectfully submit, that that 

 is the method and that is the time when this evidence is to be sub- 

 mitted. So much for that. It seems to me that those observations 

 effectually dispose of any support, or of any supposed support, which 

 may be furnished to the contention of Great Britain by the language of 

 the Article VII. 



But that is not all their argument. They then refer to the language 

 of Article IX and they conceive that that furnishes them strong sup- 

 port to their contention. I will now read Article IX. " The High Con- 

 tracting Parties have agreed to appoint two Commissioners on the part 

 of each Government to make the joint investigation and Report con- 

 templated in the preceding Article VII, and to include the terms of the 

 said Agreement in the jiresent Convention, to the end that the joint 

 and several Rei)orts and recommendations of said Commissioners may 

 be in due form submitted to the Arbitrators, should the contingency 

 therefor arise, the said Agreement is accordingly herein included as fol- 

 lows " : And then the Agreement is stated and it is further added : 

 "These reports shall not be made public until they shall be submitted 

 to the Arbitrators, or it shall appear that the contingency of their being 

 used by the Arbitrators cannot arise." The learned Arbitrators will 

 perceive that "contingency" is here used in two places, and it is 

 insisted by our friends on the other side that that word " contingency" 

 refers to the contingency mentioned (although not mentioned by the 

 use of that very word), in Article VII, namely, the contingency that 

 the Tribunal shall decide the questions, as to the exclusive jurisdiction 

 in such a manner as to leave the subject in a condition which would 



