138 ARGUMENTS ON PRELIMINARY MOTIONS. 



Sir Charles Russell. — My friend shall find no excuse for a pro- 

 tracted reply to me, for I will only make one observation. You are 

 asked to construe the Treaty, under which you sit, of the 29th February, 

 1892, and you are asked to construe the terms of that Treaty of 1892 

 by reference to diplomatic correspondence in 1890, and the suggestion 

 based on the diplomatic correspondence of 1890 is that there was then 

 a contemplation of a submission of questions to Commissioners, and a 

 contemplation that if the Report of those Commissioners was made in 

 a certain direction there would be an acceptance of the Report of those 

 Commissioners, and no need for Arbitration at all. My answer to that 

 is two-fold : first, that the negotiations referred to in the communication 

 of Sir Julian Pauucefote had relation solely to the question of Regnla- 

 tions, and had no relation to the question of damage claimed by Great 

 Britain, for the invasion of the rights of its national ships; next, that 

 that attempted Convention was one as to which it was supposed Russia 

 might be induced to become a party, and Russia had no concern with 

 the question in dispute between the United States and Great Britain at 

 all, in relation to questions of right and of damage arising out of the 

 seizure of the British ships; and, lastly and conclusively, at the same 

 time, overlapping the same dates, there is, if you read tlie correspond- 

 ence, evidence that the parties were then discussing the question of 

 Arbitration which should deal with the question of right, and, incidental 

 to the question of right, with the claims of the British Government to 

 compensation in damages. Now Sir, I have been only a minute and a 

 half. 



Mr. Phelps. — It does not appear to me. Sir, that my learned friend 

 quite comprehends, with all his acuteness of comprehension, the use 

 that we make of this previous correspondence. It has nothing what- 

 ever to do with the question of damages between these Governments. 

 It has nothing whatever to do with the concurrence of Russia. We 

 resort to it only to explain an ambiguity in oiie of the terms of this 

 Treaty, that is to say, to find out what this word " Contingency" refers 

 to. Does it refer to the contingency that this Tribunal shall decide 

 the first five questions in favor of Great Britain, or does it refer to the 

 Contingency that formerly existed Avhether the Tribunal would ever 

 sit at all? 



Now it is urged in support of the admissibility of this evidence that 

 the Treaty provides that the evidence is only to be submitted in the 

 contingency of your decision in favour of Great Britain upon the other 

 points. We say that when you go back to the former negotiations and 

 correspondence you will see how that term " Contingency" got into this 

 Treaty, and therefore that it has no such meaning — that it was imi)orted 

 into the Treaty from language employed when there was a contingency, 

 as originally contemplated, whether there should be any Arbitration at 

 all. If when the Treaty was first proposed these Commissioners had 

 agreed upon a satisfactory code of Regulations which the Governments 

 could have adopted, then there never would have been any Arbitration 

 but it was contemplated that if they did not agree, or if agreeing the 

 two Governments should not agree to adopt their conclusion, then there 

 should be an Arbitration. There was a then existing Contingency, and 

 that is the Contingency that has found its way into this Treaty, and has 

 caused the word to be used in this connection. One construction, if 

 adopted, would make the Treaty provide for the submission of evidence 

 on all points in the Cases and Counter Cases, so that it could be answered 

 on the other side. The construction for which my learned friend con- 

 tends, results in the contrary, that is to say that evidence may be 

 admitted that we cannot rej)ly to, and that is the subject of this debate. 



