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Fur seal arbitration. Proceedings of the Tribunal of Arbitration, convened at Paris under the treaty… Bering Sea Tribunal of Arbitration 1895

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Array     KTJR   SEAL   ARBITRATION.
PROCEEDINGS
Tribunal of Arbitration,
CONVENED AT PARIS
TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 30, 1893,
DETERMINATION OF QUESTIONS BETWEEN THE TWO GOVERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES
WATERS  OF  BERING SEA.
VOLUME   XI.
WASHINGTON:
GOVERNMENT  PRINTING  OFFICE.
1895. 5 3/S-?- FUR-SEAL ARBITRATION.
OEAL AKGUMENTS
THE MOTION OF THE BEITISH GO VEHEMENT
PRODUCTION BY THE UNITED STATES OP THE REPORT
OF HENRY W. ELLIOTT,
THE MOTION OF THE TJETTED STATES
REJECTION OP THE SUPPLEMENTARY REPORT OP
THE BRITISH COMMISSIONERS.  SESSION OF THE TRIBUNAL OF ARBITRATION.
SECOND DAY, APRIL 4TH, 1893.
The President.--The Tribunal has decided to appoint Mr. A. Bailly-
Blanchard, and Mr. Cunynghame, as co-Secretaries with Mr. A. Imbert.
Also, M. le chevalier Bajnotti, M. Henri Feer, M. le vicomte de Manne-
Ville, as assistant Secretaries and these gentlemen are, therefore, to take
their seats.
Now, gentlemen, I address both the Agents and I may say that the
Tribunal is ready to hear any motion from either of you or your Counsel.
If anybody has a motion to present, the Tribunal are ready* to hear it.
Sir Charles Eussell.—1 have, on the part of the Government of Her
Majesty, to make an application to the Tribunal which is based on Article
4 of" the Treaty and also upon the general jurisdiction of this Tribunal to
regulate tb e order of its proceediu gs. The application is that the repre-
sentatives of the United States may be called upon to furnish either
the original or an authentic copy of an important Eeport bearing upon
seal life, and that they may be so ordered for the assistance of this Tribunal and in support of the contentions to be advanced on behalf of the
Government of the Queen. The Eeport in question is the Eeport of an
American citizen Mr. H. W. Elliott, and its subject is " Seal life".
It is important that the Tribunal should understand why we think it
necessary that this Eeport should be forthcoming and why we think
that the authority of Mr. Elliott on this subject should be brought to
the attention of the Tribunal. Mr. Elliott is a gentleman who in the
diplomatic correspondence leading up to this Treaty has been vouched
by successive Ministers of the United States as an authority without
any equal. Mr. Bayard, when he was Secretary of the United States,
writing upon the 7th of February, 1888, describes Mr. Elliott as "a well
known authority on seal life". That communication is to be found in
the United States Appendix to their Case, and I can give my friends
the reference, if they have not it at hand. Later, on the 1st of March,
Mr. Blaine, who was then Secretary of State in America, on that date
quotes Mr. Elliott again, in similar language, as an important authority .
on seal life; and finally on the 3rd of July, 1890, Mr. Goff, Treasury
Agent to the United States, cites Mr. Elliott in this language. He says
I There is but one authority on the subject of seal life," and he refers to
Mr. Elliott as that one authority.
Now as to the Eeport, the Eeport which we desire is one which has
peculiar importance from the fact that the authority of Mr. Elliott to
make this special Eeport was conferred upon him by an Act of the
Legislature of the United States which came into force in April, 1890.
He was appointed under a special Act which authorises the Secretary
of the Treasury to appoint some person well qualified by experience and
education a special agent for the purpose of visiting the various trading 4 ARGUMENTS ON PRELIMINARY MOTIONS.
stations and native settlements on the seal Islands and so forth, for the
purpose of collecting and reporting to him all possible authentic information upon the present condition of the Seal Fisheries of Alaska and so
forth. The Tribunal, therefore, cannot fail to see that, if it be within
the competence of this Tribunal to acquire possession of .the information which such a Eeport presumably contains, that it is a matter of
considerable importance.
Now how is this document referred to? The document exists,-and
that is not disputed by my learned friends who represent the United
States. The report was made conformably to the Statute that I have
cited a special report to the authorities of the United States, to be found,
therefore, among the archives of the department to which it specially
belongs. Our information, that is to say, the information of Her Majesty's Government, is and can only be secondhand upon the subject of
this Report. Our information is derived from a publication made by
Mr. Elliott, iu which Mr. Elliott himself refers to this Eeport, and that
publication was made on the 17th of November. 1890, and is set out on
page 53 of the 3rd part of the Appendix to the Case of Her Majesty's
Government. Here it is referred to as having appeared in the columns
of an American paper called the "Cleveland Leader and Morning
Herald", of the 4th of May, 1891; and it is there signed or purports to be
there signed " H. W. Elliott." lb also purports to be, although so set
out in the journal which I have mentioned, a copy of a communication
or part of a copy of a communication purporting to be addressed to the
Hon. William Windom, Secretary to the Treasury. It is, therefore, in
the documents before the Tribunal, first referred to in the Case on behalf
of Her Majesty. It is next referred to in the Counter Case of the United
States at page 75; and I rely, and I think it right at once to call the
attention of my learned friend to it, not merely on -the fact of the reference which I am about to read, but upon the character of that reference, as a justification for the application which I am now making.
It is thus referred to. "The Commissioners", that is the British
Commissioners, "also rely on a Newspaper extract which purports to be
a summary of a report made by Mr. H. W. Elliott in 1890 to the Secretary of the Treasury to establish several alleged facts. One of these
statements in this alleged Summary is that there were 250,000 barren
female seals in the Pribiloff Islands in 1890. This is cited by the Commissioners to show the lack of virile males in the rookeries in that year."
They then proceed. " An examination of the Extract as published in
vol. 3, which is the reference I have given to the Tribunal in the
Appendix to the case of Great Britain, " discloses the fact that this
statement", that is to say the statement of figures, " appears after the
signature of H. W. Elliott, and it cannot, therefore, be construed as a
portion of such report. Furthermore, how the Commissioners can question Mr. Elliott's power to compute the number of seals on the island as
they have done, and still rely at all on his computation as to the number of barren seals, needs explanation." The Tribunal therefore will
see, first of all, the fact of the report is not questioned, but what is
questioned is the authenticity of, the correctness of, the extract which
purports to be given in the paper from which the British Commissioners
of Her Majesty's Government in their Case cite.
Now in that state of things Her Majesty's Government considered
that it was of moment that the actual report, or an authentic copy of
it, should be at the disposition of those who advised the Queen, to use
it as they think right, and to place it before this Tribunal if it throws
any important light on any part of the discussion in which this ARGUMENTS  ON PRELIMINARY MOTIONS. 6
Tribunal is engaged;.and accordingly on the 10th February in the
preseut year the Agent of Her Majesty's Government addressed a letter
• to Mr. Foster, the Agent of the United States, in these terms. It relates
to several documents, and I will only read that part of it which refers
to this report. "The undersigned Agent of Her Britannic Majesty's
Government has the honor, by the direction of Her Majesty's Government, to give notice that he applies for the production by the Agent of
the United States of the following documents or copies of the following
documents."—And then, under the third head, the document in question is thus described. "A full copy of the report of Mr. Henry W.
Elliott in 1850 specified and alluded to on page 75 of the United States
Counter Case". The answer of Mr. Foster to that demand was made
in writing on the 16th. February 1893, and referring to the document
in question (I omit the other parts) this is the answer which the Eepre-
sentative of the United States thought proper to make. "The third
document" (that is this report) applied for by Her Majesty's Government Agent is a full copy of Mr. H. W. Elliott's report in 1890 specified and alluded to on page 75 of the United States Counter Case.
"The undersigned begs to make the following statement in relation
to the document applied for. The reference cited in the notice of the
Agent of Her Britannic Majesty is in the following words", And
thereupon is repeated the passage which I need not trouble you with
reading again. . It then proceeds: "The Counter Case of the United
States alludes to a newspaper extract, not to Mr. Elliott's Eeport, and
specifically to the same as published in the Appendix to the Case of
Her Majesty's Government." The unwarranted construction placed,
upon the citation by the Agent of Her Britannic Majesty's Government is obvious.
The next paper extract to which reference is made, is cited by the
British Commissioners, and therefore, it is to be supposed, is in their
possession. If not, it can be as readily obtained by Her Majesty's
Government as by the Government of the United States, which has
not the same in its own " exclusive possession", which is the condition
precedent required by Article 4 for the production of any report or
document specified or alluded to. I will come to the construction of
Article 4 in a moment. At present I wish to convey to the mind of the
Tribunal what this answer amounts to.
First of all, what does it not amount to? It does not challenge the
fact that there is an official report in existence made by one specially
charged by the United States with the duty of making that report.
It does not deny that that report is in existence, and may be made
available should this Tribunal see fit so to direct. But what it does
Bay, in effect, is this:—You first referred to this report. You refer to
a newspaper extract. That newspaper extract is not exclusively in
the possession of the United States. Your production of it shows that
it is in your possession, and you have just as good means of getting
that newspaper extract as we, the United States. That is their
answer. I agree the answer is perfectly correct, as far as the newspaper extract is concerned. It is equally available for both of us; but
what we want is to get the report which is referred to in that newspaper extract: to get that report in extenso. Our ground for urging
as a matter of good sense and of equity that we must have that report
is this; that they have in their reference to that extract challenged
its correctness, and its authenticity, and have alleged that the statement referred to as a statement of Mr. Elliott is not to be regarded as
a statement of Mr. Elliott, because, as appears in the newspaper 6 ARGUMENTS  ON PRELIMINARY  MOTIONS.
extract, it appears to have been written under and not above his signature, and they take the point that upon the construction which they
are pleased to give to the 4th clause of the Treaty, a condition precedent to the production of the original or an authentic copy is that the
document referred to in the Case or Counter Case shall have been
shown to have been, or to be, in the exclusive possession of one of the
parties. With great, deference to those who so contend and respectfully submitting the views which the government of the Queen entertain, that would indeed be a very narrow, and, as we submit to your
judgment, an unsound interpretation of article 4.
Now I would ask the attention of the Tribunal while I submit what
is the true construction of that article. It turns upon the last clause
of that article, beginning with the words " If in the Case". I think
my learned friends will probably agree that the earlier part is not
material or not directly material to the purposes upon which we now
aie engaged. "If in the Case submitted to the Arbitrators either
party shall have specified or alluded to any report or document in its
own exclusive possession, without annexing a copy, such party shall
be bound if the other party thinks proper to, apply for it, to furnish
that party with a copy thereof." Now I agree that so far as I have
read this clause of article 4, it does point to applying only to documents in the exclusive possession of one party, and referred to by that
party.
But it is the second branch of this clause upon which I mainly rely.
It then proceeds, " and either party may call upon the other, through
the Arbitrators, to produce the originals or certified copies of any
papers adduced as evidence, giving in each instance notice thereof
within 30 days after delivery of the Case". The distinction, therefore,
between these two branches of this rule is, I submit to the Tribunal,
obvious. The first part deals with a document exclusively in the
possession of one of the parties, and referred to by- such one of the
parties in the Case submitted. The second branch deals with a much
wider, and much more important matter. It deals with this, that if
there exist in the possession of either party the original documents
which are important in the elucidation of the truth and in arriving at
a proper conclusion upon the facts, then the party who desires to rely
upon such document shall not be driven to rely upon uncertain, unsafe,
secondary evidence, or partial evidence, or extracts from the document
in question; but that the Tribunal shall have the means of assisting
that party in putting before the Tribunal the actual, authentic document itself, or an authentic copy of the document itself. Surely that
is the reason of the thing.
Lord Hannen.—You have not referred to the words " adduced as
evidence".
Sir Charles Eussell.—I read that.
Lord Hannen.—I know you did.
Sir Charles Ktjssejll.—" Of any papers adduced as evidence", I am
comin g to that next branch in a moment, but I read the words " adduced
as evidence".
Lord Hannen.—Yes you did.
Sir Charles Eussell.—In this case we have adduced this report as
evidence. We have cited it in our Commissioners' report. We have
cited it in the third part of the appendix, page 53, to which I have
referred, but that is only what lawyers call secondary evidence of the
report. In a court of law, as my learned friends well know, governed
by strict rules of evidence as they are understood both in America and ARGUMENTS ON PRELIMINARY MOTIONS. 7
in England, that would not be evidence at all. Therefore before this
Tribunal, not hampered by technical rules of evidence, it is at the best
only a secondary class of evidence, and if we had the document admitted
as it is set out, imperfectly set out, in the documents connected with
our Case by the United States as authentic and as reliable, the importance of the question would be here comparatively small. Again, I must
emphasize that which is the important point in this case. On page 75
and 76 of the Counter Case the United States,—and, as I see, the Members of the Tribunal have not their books at hand for the moment, I
had better read it in full beginning at the second paragraph on page
75,—it reads thus. "The Commissioners"—I have read this already,
but I will repeat it,—" also rely on a newspaper extract which purports
to be a summary of a Eeport made by Mr. Henry W. Elliott in 1890 to
the Secretary of the Treasury to establish several alleged facts. One
of these statements in this alleged summary on Pribiloff Islands in 1890
(section 382, page 40) is that there were 250,000 barren seals."
This is cited, by the Commissioners to show the lack of virile males on
the rookeries in that year. "An examination of the extract as pub-"
" lished in Volume 3 of the appendix to the Case of Great Britain dis-"
" closes the fact that this statement appears after the signature of"
" H. W. Elliott, and it cannot, therefore, be construed as a portion of"
"such Eeport. Furthermore, how the Commissioners can question"
| Mr. Elliof s power to compute the number of seals on the Islands,"
" as they have done, and still rely upon his computation of the number of"
" barren females, needs explanation." Now, paraphrase this paragraph.
When they say the British Commissioners rely on newspaper extracts,
I ask why should they be called upon to rely upon a newspaper extract
when the authentic document exists and is procurable? Why are the
United States through their Agents to be considered justified, on page
76, in throwing doubt upon the authenticity of one of the extracts that
upon the fact that, extract in part does not represent conclusions of Mr.
Elliott and is not part of his report, when the point can be determined
not by conjecture or speculation, but by examination of the actual
documents in the possession of the United States itself? I find great
difficulty, and I say it with all sincerity, in appreciating why it is that
this document, which owes its origin to a solemn Act of the Legislature
of the United States, should raise what I must, quite respectfully, call
the very narrow and very technical objections to this document which
are stated in the answer to the application for the document by the .
Agent for the United States. I base my application, therefore, upon
these grounds:—First of all, that we ought not to be driven to rely
upon secondary evidence of a document the original being in the possession and under the control of the representatives of the Government
of the United States; next, that it is within the terms of Article 4, that
this Tribunal should not compel us to rely upon secondary evidence, but
may, for their own information and for ours, direct the production of
the original or an authentic copy. I say the power is conferred upon
this Tribunal under article 4 in the second clause, which I have read;
but I say, if there were no such Article at all and even in face of that
Article, this Tribunal surely has the right to call for, for the better
information of its own judgment, and surely has, inherent in itself, as
a Tribunal to determine difficult and somewhat complicated issues, a
right to say this is a document which, from every circumstance attending its history, ought to be regarded as one of importance in this controversy, seeing that it was procured at the instance of the executive of
the United States itself for the very purpose of informing those who 8 ARGUMENTS  ON PRELIMINARY  MOTIONS.
are advising the Government of the United States on the very questions dealt with or largely dealt with in the controversy now before this
Tribunal. These are the grounds upon which I submit that we are
entitled to have this document; and I cannot doubt that if the Tribunal
-or any portion of the Tribunal express its opinion (and I cannot doubt
that it must be in the minds of many of them) that it is but reasonable
and right that this document should be forthcoming and be judged
according to its merits by each member of this Tribunal, I cannot doubt
but that further objection to its production will be withdrawn.
The President.—I would ask Sir Charles Eussell to be kind enough
to put his motion in writing and communicate it to the Secretary of the
Tribunal, so that we may have the exact words of the motion before us.
Sir Charles Eussell.—Certainly.
Sir Eichard Webster.—I ask to be permitted, Sir, not to repeat, but
to supplement, the argument of my learned friend the Attorney General
by a reference to one or two other documents in evidence which strongly
enforce, in my respectful submission, his contention. You are aware
that by Article 3 of the Treaty the printed Case of each of the two
parties, accompanied by the documents, the official correspondence, and
other evidence on which each relies, shall be delivered in duplicate; and
you are further aware, Sir, that by the earlier clause of Article 4, within
3 months after delivery on both sides of the printed Case, each party
may in like manner deliver in duplicate to each of the Arbitrators, and.
to the agent of the other party, a Counter Case, and additional documents,, correspondence, and evidence, in reply to the Case, documents
and evidence, so presented by the other party". My learned friend, the
Attorney General, has called the attention of the Tribunal to the fact
that in the Appendix to the original British Case lodged in September
last, there was the best evidence that we could then obtain of the documents in question. It was that which purported to be, under the signature of Mr. Elliott, addressed to a Government official, verbatim extracts
of part, and but of part only, of his Eeport.
Now, Sir, comes the additional matter to which I respectfully call the
careful attention of this Tribunal. A difference having arisen between
the United States and Great Britain as to the true construction of the
Treaty, Mr. Foster asked that some further documents should be supplied (I am stating this of course in a very few words) and accordingly
it was by arrangement, which will be found in the letters of Mr. Foster
i to Mr. Herbert, and of Lord Eosebery to Mr. Herbert, of the 2d September and the l8t October last year, arranged, in deference to the views of
the United States, that the report of the British Commissioners should
be treated as part of the Case of the Government of Her Britannic
Majesty. I need not now, Sir, discuss the merits of that dispute. I
will merely say that the Government of Her Britannic Majesty, in furtherance of the desire that this Arbitration should be conducted with
the fullest information on both sides, accepted the view put forward by
Mr. Foster on behalf of the Government of the United States that the
Eeport of the British Commissioners should be furnished, and should
be treated as part of the Case of the Government of Her Britannic
Majesty. In that Eeport, with which I know the Tribunal are familiar,
in sections 433 and 832, the Eeport of Mr. Elliott is referred to in supporting certain statements of fact upon which the British Commissioners
relied. We had at that time therefore before us, Sir, what I may call
three separate allegations of fact all based upon that, which we had
reason to believe was an authentic extract from Mr. Elliott's Eeport,
it having been signed by himself and being sufficient for our purpose. ARGUMENTS  ON PRELIMINARY  MOTIONS. 9
Had the matter stood there it might have been suggested that that was
all we wanted; but the United States, by their criticism, to which the
Attorney General has called attention, submit to this Tribunal, that it
is to reject part of the secondary evidence which has been put forward
by Her Majesty's Government, upon the ground that upon the face of
the newspaper account of the Eeport it was to be presumed that in this
respect it was not trustworthy; and I beg the Tribunal to notice, that
the Government of the United States had in their possession at that
moment the original report addressed to the Secretary of the Treasury.
Now I need not again enforce what the learned Attorney General has
said on the criticism of the United States with reference to allegations
made on behalf of Great Britain, but I now again call the attention of
the Tribunal to the Treaty. The original of any paper adduced as evidence is to be ordered by the Tribunal to be produced, if in its discretion
the Tribunal consider that it is material or pertinent to the matter before
it; and I again remind this Tribunal that it is a rule not only of this,
but of all tribunals which exercise judicial functions, that the best evidence is to be at the service of the tribunal if it is possible. That is only
in the event of the failure of their being able to obtain the best evidence
that secondary evidence becomes either reasonable, or such as the Tribunal should rely upon.
Mr. Justice Harlan.—Does your motion comprehend the filing of
this paper as evidence?
Sir Eichard Webster.—My motion, Sir, comprehends the production of this paper, so that the original may be referred to by either side,
and certainly by the Counsel for Great Britain, as the best evidence—
as the evidence of the Eeport which Mr. Elliott made, which we have
already referred to in our Appendix. It is already in evidence; we have
referred to it in our Appendix; it has been treated by the United States
in their Counter-Case as evidence; it is criticized upon the ground that
it is evidence, but it is said that a part of it you must reject, because it
happens to be written below the signature of the gentleman who purports to make the Eeport. I ask, suppose it be the fact that in the body
of the original Eeport there are the same figures which are referred to
after the signature in the extract given to us, my learned friends who
represent the United States would be the first to admit, that if those
figures were there they would not rely upon the accidental circumstance
that in the particular form in which they were cited by the paper they
do not appear, but that they are in the body of the Eeport to which
reference has to be made. I again respectfully press upon this Tribunal
that, without saying that a Treaty of this description is not to be construed by the cast iron rules which we as lawyers might possibly apply
to legal or conveyancing documents, it is evident that if either party
refers in evidence to documents, the originals of which they have not
got or have not produced, the Tribunal shall order, if they see it is relevant, the original to be produced. It cannot make any difference in
whose custody the original document is. Supposing it happened that
this was a document which the United States desired to produce or give
in evidence, it would be no answer for us to say, "You have got some
means of referring to the contents of that document"; the Treaty has
required the Tribunal and has enabled the Tribunal in its discretion to
call for originals which form part of the evidence adduced by either party.
Sir, I have but one more word to add. It is, in fact, alluded to in the
sense of the Treaty even by the United States themselves, because they
do not speak of it as merely a newspaper report of something which
Mr. Elliott is supposed to have said.   They refer to it as a newspaper 10
ARGUMENTS  ON  PRELIMINARY  MOTIONS.
extract which purports to be a summary of a report made by Mr. H. W.
Elliott to the Secretary of the Treasury. Therefore we respectfully
submit to this tribunal that upon first principles which govern the laws
of evidence, in the broadest sense of the term, an original document
which has been alluded to by the party desiring to refer to it, which
has been made part of their evidence by the original Case and by that
which upon the invitation of the United States was to be treated as part
of the original Case—the original of that document, we humbly submit to this Tribunal, must be produced; and we further poiut out that
it could scarcely be contended that because the only means accessible
to us happened to be in the first instance a newspaper extract from that
report, therefore we should be denied access to the original.
Sir Charles Eussell.—The form of the Order, sir, which I should
suggest that this Tribunal should make and which we request that they
should make, is this, that the Agent of the United States be called upon
by the Tribunal to produce the original or a certified copy of the Eeport
made by Mr. Henry W. Elliott on the subject of the fur seals, pursuant
to the Act of Congress of 1890.
The President.—Have the United States anything to reply to this
Motion?
Mr. Phelps.—The disposition, Mr. President, which we shall propose
to make of this application relieves us from the necessity of troubling
you long upon the subject of its admissibility. The circumstances however that attend, and have heretofore attended this application, and one
which preceded it, are such that we have not thought it right to allow
the subject to pass without au explanation to the Tribunal of the attitude
of the United States upon this subject, because it bears collaterally, in a
very important way as we conceive, upon other questions that the Tribunal will hereafter encounter. Now, to begin with, I do not preceive
that the remark of my learned friend as to the value of this evidence, is
germane to this enquiry. The question is not upon its weight, but on
its admissibility. If it were ever so valuable, if not admissible it is not
to be admitted. If it were comparatively of no value at all, if it be
admissible they are entitled to have it in evidence. Another observation of my learned friend, Sir Charles Eussell, to which possibly I
attach more consequence than he did, is on the subject of what he
terms the general jurisdiction of this Tribunal. On these questions of
procedure we respectfully deny that under the Treaty the Tribunal is
invested with any such jurisdiction. If you were sitting as a Court,
a court of general judicial powers, the incidental discretion that would
attend the Tribunal, as we all know, is very large. The Treaty might
have invested this Tribunal with such discretion and such powers. It
has failed to do it. It has undertaken to specify with great certainty
and particularity the method of precedure in bringing before the Tribunal the evidence which they are entitled to consider. I do not
enlarge upon this point now, as it will become the subject of discussion
in a subsequent motion. I only make the observation, that it may not
be thought that we concur at all in the idea that this high Tribunal is
invested with any power to admit evidence, or consider evidence, except
precisely that which is conferred upon them by the Treaty under which
they are constituted.
It is true, as has been stated by my learned friend, that an application was made to the agent of the United States in February for the
production of this document, and it was refused upon the ground
which he has read to the Tribunal; refused upon a further ground
stated later in the letter of the agent, which he has not read.   It is ARGUMENTS  ON  PRELIMINARY  MOTIONS. 11
only so far as may be necessary to justify the position of the United
States Government on this subject, that I shall trouble the Tribunal
with any remarks. If this document is admissible, it is made so by the
last paragraph of article 4 of the Treaty, the only one which has any
reference whatever to the subject. "If in the Case submitted to the
Arbitrators either party shall have specified or alluded to any report
or document in its own exclusive possession, without annexing a copy,
such party shall be bound, if the other party thinks proper to apply for
it, to furnish that party with a copy thereof". That is the first half of
the paragraph. I shall consider the other further on. It will be
observed that the language of this provision is restricted to the Case
that has been furnished by either party; not to the Countercase, which
is a very different document. Article the third, as has been already
pointed out, provides for the delivery in duplicate by each party to the
other and to the Arbitrators, at a particular time, of a Case. Article
4 provides for the subsequent delivery by each party to the other, and
to the Arbitrators of a Countercase. Both words are used throughout
the Treaty. Each has its own meaning, and its own application. It
is not claimed on the part of my learned friends that any allusion to
this document whatever on either side took place in the Case, certainly
not our side; and I believe not on theirs. It is in the Counter Case
that the allusion is made, which appears to them to lay the foundation
for an application for the document.
Now, it may be said, as has been said, this is a technical construction. That the more liberal view would be to treat the word "Case"
in this connection as including the entire submission by the party of
his allegations and evidence. The difficulty with that construction is
that what comes in in the Counter Case cannot be subject, under the
terms of the Treaty, to any reply, contradiction or explanation. The
Treaty closes the door, on the delivery of the Counter Case, to the
admission of any evidence whatever upon any subject; so that while
if a document is so far alluded to in the case of a party as to make it
properly the subject of an application for the whole document, so that
the. party applying for it can in his Counter Case make the proper reply
by evidence and allegation, there is a propriety and force in the provision ; but if, on the other hand, it is open to the party to call for the
production of a document which is alluded to for the first time in the
Counter Case, then that document which comes in as evidence for all
purposes for which it may be legitimately used, cannot be answered
on the other side. That is the reason; and. that is one of the reasons
assigned by the Agent of the United States in the latter part of the
letter which my learned friend has read as one of the grounds upon
which this application is declined.
But, to go farther, suppose for the purposes of argument that the
word "Case "here includes the Counter Case; what sort of an allusion
or specification is it which the Treaty requires as the foundation for an
application for such a document?
Senator Morgan.—Is there no allusion to this paper in the British
Case?
Sir Charles Eussell.—Certainly there is, atpage53of the Appendix.
Mr, Phelps.—There is none in ours, and I had the impression there
was not in theirs. But that is immaterial, because, as I am going to
point out, it is " our" allusion that must be the subject of this application, not theirs. Our first allusion to it, if it be an allusion to it within
the meaning of the Treaty, which we deny, is to be found in the Counter Case, in the passage that has been read by my learned friend.   " If 12 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
either party shall have specified or alluded to any Eeport in its own
exclusive possession without annexing a copy," what is the meaning of
that? It is that if either party shall have brought forward by specification or by allusion any document in support of any contention and
has relied upon it, and has put it forward so that his Case is in any
respect strengthened by the allusion, then at the instance of the other
side he shall produce the full copy of the document he refers to. And
that provision is founded in the greatest and most obvious propriety.
But is a reference to a document in the Counter Case in reply to a part
of it that has been brought forward on the other side, such an allusion
as the Treaty contemplates ? It is difficult to read these words without
perceiving what the spirit and object of the provision is, that a party
shall not be permitted to fortify himself in any way by a reference to a
written document in his own exclusive possession, without giving the
other side (if they ask for it) the benefit of the entire contents. But
when the other side thinks proper to allude to some copy or extract in
their own possession out of a newspaper and a reply is made to that in
the Counter Case saying that it is not authority or is not material, have
we brought forward the Eeport as in any way assisting the case of the
United States? I do not press the subject, because it is immaterial.
I have said thus much in order to state the justification which we think
existed, and exists now, for the refusal of the United States in February to produce this document. And if it be said that the refusal was
based upon a technical ground, although, the technical ground is well
founded correct, I may be permitted to say that this Case will not proceed very far, in my judgment, without disclosing that we should have
been perfectly justified, and are perfectly justified, in standing upon
any ground in respect to the admissibility of evidence, whether it is
technical or not.
A subsequent contention of my learned friend is, under the latter
clause of this Article, that either party may call upon the other through
the Arbitrators to produce the originals or certified copies of any papers
adduced as evidence. Adduced as evidence by whom? By his adversary. Was it ever heard of in a Court of Justice that one party, by referring to a document, can compel the production of it on the other side?
Where a document is in the exclusive possession of one side, under the
rules of law that prevail in England and in America, before secondary
evidence of it can be given by the other, notice to produce it must be
given. If that notice is not complied with, the secondary evidence
becomes primary evidence, and is admissible. In some jurisdictions,
there are statutes under which through the process of a subpoena, production of papers, private papers to some extent, and under various limitations, may be called for. I know of no general rule of law in England
or in America that justifies a party in calling upon his adversary to
produce a document, I mean to compel his adversary to produce a document, because he has referred to it as part of his Case.
Now let me add another word. This paper was produced and furnished to the British Commissioners during their Session at Washington, and remained in their possession as long as they cared to keep it.
It will be seen therefore that there has been no disposition on the part
of the United States Government to withhold or to conceal it; and the
foundation of the objection which we conceive to be an unanswerable
one upon the terms of this Treaty to being compelled to produce it, was '
the fact that, if produced, it came in as it comes in now, too late to be
met by the proper reply. ARGUMENTS  ON PRELIMINARY  MOTIONS. 13
I shall not follow my learned friend in remarking upon the value of
this paper; that is a subject that will engage the attention of the Tribunal later on. It will be seen how valuable it is. It will be seen
whether there is any reason on the part of the United States Government why it should be withheld. It is enough for me to say now, that
it has not been withheld from the Commissioners, that it would not
have been withheld from the other side if it had been asked for in time
to prepare a reply; that it was refused because being a document of
great volume and extent, it would have come in too late to have been
met by the explanation and the evidence which we think should accompany it.
Now, having said all this, Sir, let me say that we shall produce the
document, and give our learned friends the benefit of it, with the understanding, which I assume to be, from the language of my friend, Sir
Eichard Webster, satisfactory to them, that it comes in as evidence for
the benefit of either party.
Senator Morgan.—Mr. Phelps, do you think that the Counsel in this
Case before this Tribunal, by an agreement amongst themselves can, at
this hour, bring evidence into this cause?
Mr. Phelps.—I was going to remark upon that, Sir, in a moment.
I do not think, as I shall have occasion to say at greater length, that
there is any power to bring evidence into this case at this stage. But
we do not choose to stand—we prefer that the Government of the
United States should not stand in this enquiry, subject to the reproach
of having attempted to withdraw or withhold or stifle anything that
throws any light upon the subject. The conduct of the whole case I
may respectfully submit, as it will sufficiently appear in due time, has
been the other way.
Senator Morgan.—But how can the tribunal give its consent to
exceed its powers merely for the purpose of preventing incrimination
or recrimination between the Governments by their counsel in debate?
Mr. Phelps.—That will be a question entirely for the disposition of
the Tribunal. We are making no admission that binds the Tribunal.
We are making a concession that binds only ourselves. We say that
if the Tribunal at this stage of the case desire to consider this document, we shall have no objection. That is as far as we go. But it
must be understood, and that is the object of these remarks, that we
in no respect concede what, before the day is over, we shall be called
upon to deny most emphatically—the right of a party to introduce any
evidence—any further evidence—at this stage or any future stage of
the Case. In making the concession, so far as we are concerned, subject, of course, to the judgment of the Tribunal as to the use they will
permit to be made of it, it must be understood that it is without waiving in the least the position, that no evidence at this stage can be introduced as a matter of right.
Mr. Justice Harlan.—It can be lodged, then, as evidence to be used
by either party, subject to the judgment of the Tribunal, when they
look into it, as to their power to use it.
Mr. Phelps.—Certainly, Sir, we are not presuming to suggest to the
Tribunal what use they shall think proper to make of this^^ument
when it comes before them; that is for them to consider.     1   w
Senator Morgan.—Does the same argument apply to that part of the
British Case which Counsel have alluded to, which came in after the
Case had been placed in the hands of the Arbitrators?
Lord Hannen.—That is a different question. That depends on other
elements. j*.»e-3$r 14
ARGUMENTS   ON  PRELIMINARY  MOTIONS.
Mr. Phelps.—That is a question which will come up later.
Senator Morgan.—That was referred to and as a case analogous to
this, and an authority on this question.
Mr. Phelps.—That will come up later, under other motions, for discussion, but as the question has been put by the learned Arbitrator, I
may say that in our judgment no such evidence can be properly considered. That will be our position when we reach that question. All I
desire to say now is that, without conceding, and emphatically denying
that the terms of this Treaty entitle Her Majesty's Government to call
for this document, we prefer to consent to put it in evidence, with the
understanding that, if used at all it is open to both sides, leaving it to
the Tribunal to attach such value to it, and to make such use of it as
they may deem proper. The whole subject, let me say in conclusion, of
the time and manner in which evidence not in reply can be brought
before the Tribunal, will come up later and will come up all the way
through the discussion of this case.
Mr. Carter.—Mr. President and gentlemen, in respect to this particular paper there is not, it seems to me, very much importance in this
discussion, and I quite concur with my learned associate in his manner
of dealing with it; but in respect to our views as to the powers of this
Tribunal there is a great deal of importance, and it seems to me that
any discussion concerning them, whenever it is brought forward, should
be conducted with deliberation, and nothing should be taken for granted.
I am moved to add one or two observations here, solely in consequence of some remarks which were made by our learned friends upon
the other side. The first of them which attracted my attention was
that the refusal by the agent of the United States to furnish the document in question, when the demand was made for it in February last,
and the grounds upon which that refusal was placed, seemed to exhibit
a very narrow interpretation of the provisions of the Treaty, and of the
necessities of the controversy, and also exhibited a disposition to rely
upon technical considerations.
If the object was to indicate that the United States, in their dealing
with this controversy generally had been at all disposed to withdraw
from the attention of the Tribunal which was to dispose of it any evidence which was pertinent to the merits of it I am very sure that such
an imputation would be wholly erroneous. It is our belief that the
Government of the United States, at every step during the pendency of
this controversy, has exhibited the largest and most liberal spirit in
reference to the production of evidence which would be pertinent to the
merits. If there was any facility which it peculiarly enjoyed for the
ascertainment of truth, it has been ready, I think, from the start to
furnish it to the Government of Great Britain. My learned friends
upon the other side will remember, and the Tribunal must be aware
from the case which has been laid before ifc, and the papers contained
in it, that at the very outset the Pribiloff Islands, which are the arena
out of which the controversy arose, were freely thrown open to the
inspection of Her Majesty's agents. A special agent was allowed to go
out there for the purpose of making enquiries, and for the purpose of
gatherup evidence which it might be useful for Her Majesty's Government Wmcorporate into the Case which was to be submitted to the
Tribunal. If there was any knowledge in reference to the habits of the
seal to be gathered from that Island, if there was any information in
reference to the industijpcarried on upon that Island which might be of
any sort of use to Her Majesty's Government, it was freely thrown open.
I think the same course has been pursued in reference to documentary ARGUMENTS  ON  PRELIMINARY  MOTIONS. 15
evidence which might be supposed to be in our exclusive possession. I
think it will be admitted upon the other side that they have from time
to time called for documents to which perhaps they were not entitled
under the provisions of the Treaty, and which were yet freely thrown
open to them; but I make this observation for the purpose of showing
that there has been at no time on the part of the United States any
disposition to withhold from this Tribunal, or to withhold from the
other side, any evidence pertinent to the merits of the controversy.
We did, however, refuse to furnish this report. And why? The
Tribunal must have perceived already that there is something peculiar
about this report. I may assume that the Tribunal is familiar with the
practice of Governments to print and publish important reports and
documents—reports which have been made pursuant to provisions of
law. If Commissioners are appointed for the purpose of making enquiries—(appointed by a legislative body—our Congress for. instance)—
their report is, in the ordinary course of things, published and made
known to the world. It already appears as a fact that this was not the
case with regard to this particular document. Her Majesty's agent
found the extract which he has incorporated in his case in a newspaper. That was the only mode by which it appears he was able to
obtain it at that time. Therefore, there is something peculiar about
this report. What is that? Well, I am not at liberty to say, because
the evidence for it is not furnished by the Case; but I am at liberty to
say what well may have been the case,—it may have been a report
which the Congress of the United States that authorised the investigation which led to it conceived to be wholly erroneous, wholly unworthy
of credit, unworthy of publication, unworthy of adoption. It may
have been of that character. It may have been a report which, in the
judgment of the Congress of the United States, was inspired by bad
motives, and, therefore, not to be made public. It may have been a
report which, in their judgment, was inspired by motives hostile to the
interests of the United States, and hostile to their management upon
the Islands, and for that reason, therefore, not to be published. All
these facts, or some one of them may have been true, or may not have
been true. Something was true about it—which led to the withholding
of that report from the ordinary treatment which is accorded to documents of that character; and that too, long before this controversy
arose. Nevertheless, when the British Commissioners were in the
United States for the purpose of making their investigation, they
wished to have access to that report. It was freely thrown open to
them:—They were told " Look at it if you please." It was not withheld. No demand, after the Treaty was framed and in the course of
the preparation by the respective parties of the Cases and Counter-
cases—no request;—was made to the Government of the United States
for the production of that report or for furnishing a copy of it to the
other side to the end that they might incorporate it in the Case if they
pleased. If such a request as that had been made, the United States
could have said in answer to it, " Yes, we will give you the report, but
you must take it in connection with some explanatory matter which we
will furnish with it. There are reasons why this report has not been
made public, and if the report is now to be placed before the public we
wish to have also placed before the public the reasons which go to
explain it." That course was not taken. On the contrary, the agent
of Her Majesty's Government having incorporated into the British case
what purported to be some extracts from it printed in a newspaper,
and the United States in the preparation of its Counter .case being 16 ARGUMENTS   ON  PRELIMINARY  MOTIONS.
called upon to refer to the allusion which had thus been made in the
British Case to this document, he then serves a written demand upon
the agent of the United States that he furnish him with that document
as a matter of right.
Well, what if that had been cpmplied with? Why then the Govern-
ment of Great Britain would have succeeded in obtaining this document, peculiar in its nature, without those explanatory circumstances
which ought to have accompanied it, which explanatory circumstances
the United States would have had no means of placing before the Tribunal. It seemed therefore to be a proper occasion to look into the
Treaty, and see what the provision relied upon for this demand was,
and whether it authorised the demand or not.
Now it seems to me, upon looking at the provisions of the Treaty,
that it is quite plain that no such demand on the part of the British
Government was authorised. The provision of the 4th article is this:
" If in the case submitted to the Arbitrators either party shall have
specified or alluded to any Eeport or document in its own exclusive
possession without annexing a copy, such party shall be bound, if the
other party thinks proper to apply for it, to furnish that party with a
copy thereof." That is the first provision. Well what is the object of
that? what is the purpose of it; for when we are interpreting provisions of this sort we must look to see what their object is. Why, it
seems very plain. Nothing is more common in judicial proceedings
than for one party in the course of his pleading, in making up his allegations, or in introducing his proofs, to make a partial use of a written
instruments—not to use the whole of it, but to use a part of ii;—such
part of it as he supposes to favor his own contention, aud he does not
tell his adversary what the rest of it is. Well naturally-his adversary
says, I How do I know but that there may not be something in the
instrument which favors my contention, or goes to qualify the inference which the party who has made use of an extract from it wishes to
draw from it"; and, therefore, the law usually furnishes a mode by
which, when a part of an instrument has so been used, the production
of the whole of it may be compelled by the adverse party. It is the
case of a partial use of an instrument. Let me again read this language of the Treaty: "If in the case submitted to the Arbitrators
either party shall have specified or alluded to any Eeport or document
in its own exclusive possession, without annexing a copy, such party
shall be bound, if the other party thinks proper to apply for it, to furnish, that party with a copy thereof". That would enable either party,
as the members of the Tribunal will perceive, when he comes to make
up his counter case to put in the rest of the document of which his
adversary has made a partial use, in his counter case or such part of it
as he may suppose to favour his contention, and thus the whole document, or all that is material in it, is placed before the court or tribunal.
Now the Tribunal will perceive the reason why this provision is
restricted to the instance where a party has specified or alluded to a
document in his case. It is to enable the other party to get the rest of
the document, to the end that he may put it in evidence when he comes
to make up his counter case. If the allusion is made in the counter
case there is no occasion for giving the other party the rest of the document for he has no means then of putting it in evidence, for the preparation of the counter case absolutely concludes all the means furnished
by this Treaty for the introduction of evidence before the Tribunal.
I think, therefore, it is quite plain from this explanation of the
article in question that the only instance to which it applies is where ARGUMENTS  ON PRELIMINARY MOTIONS
i made an allusion to a document, and (if ■
it means where he has made a partial use i
notice thereof within thirty days after delivery of the case; and the
original or copy so requested shall be delivered as soon as may be, and
within a period not exceeding forty days after receipt of notice." I
will not stop at this moment to comment upon the rather clumsy limn -
provision in the treaty which constituted the Geneva Tribunal of
Arbitration; and if there were any attempt to really enforce it, it would
be found perhaps somewhat difflcnlt to construeits particular terms; but
as to its spirit and purpose, its real object and meaning, I think that is
apparent upon the face of the provision,—" either party may call upon
the other, through the Arbitrators, to produce the originals or certified
copies of any papers adduced as evidence". Now that refers to the
case where a paper is adduced in evidence—the whole of it. In such
case the other party, as is often the case in judicial proceedings, may
have some doubt as to the authenticity of the document,—he may have
doubts about that; and, if he has, it is fair that those doubts should be
satisfied, and this provision is one for the removing of such doubts. It
is an obligation on the party who puts a paper in evidence,—the whole
of a paper,—to furnish to the other party the original or a certified copy
of it to the end that the latter may be satisfied of its authenticity. That
is the provision.
Now does this case fall within the first of the categories mentioned?
Plainly it does not. There is no pretence here that there is any allusion of any nature or description by the United States to this document in its case. That is not pretended. The allusion, if it is made
anywhere or contained anywhere, is in the counter case of the United
States; and that is a case not provided for by the terms of the Treaty,—
not within its letter, and not, as I have endeavoured to explain to you,
within its spirit or purpose. That is the first difficulty, and it is an
iusuperable one, in bringing this motion within the first clause of the
paragraph in question.
But there is another difficulty. I have said that it is not alluded to
in our Case but in our Counter Case, if at all. But we have not alluded
to it there unless when, perchance, a document is mentioned in any way
or for any purpose in a Counter Case, that is understood to be an " allusion".   Her Majesty's Government in its original Case had alluded to
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ARGUMENTS  ON PRELIMINARY MOTIONS.
ment upon an allusion made by the Government of Great Britain—that
is all. If a different interpretation could be put upon the terms of the
Treaty, a party would be precluded from denying, qualifying or criticising an assertion of his adversary which contained an allusion to a
Eeport without subjecting himself to the obligation to produce that
Eeport if it was in his exclusive possession; therefore I conceive it
quite plain that it does not come within the first clause.
It does not come within the second, certainly. It has been argued
by our learned friends on the other side, that the second branch of the
clause of the treaty furnishes a means by which this Tribunal may be
supposed to be clothed with a certain general jurisdiction and authority
to compel the production of documentary, or other evidence, whenever
in its judgment it is necessary for the purpose of determining the truth.
I have no desire whatever to restrict within narrow limits the authority
of this Tribunal, but we must regard the terms of this Treaty and we
must adhere substantially to those, otherwise we shall be very speedily
at sea and without a rudder or compass. It is, we are all aware, a
common incident of ordinary municipal Courts of Justice, that they
have an incidental power over the parties to the controversies which
are brought before them, to compel such parties from time to time to
do such acts and things in the way of furnishing evidence, copies of
papers,' documents and so forth, as may be supposed to be necessary
to the administration of justice in the cases before them. In such
cases the parties are private individuals. The Tribunal before which
they appear represents, and is clothed with, the sovereign power of the
State and can do with them as it pleases. That is not the case here.
This Tribunal is one specially constituted and clothed with such
powers as are specially mentioned in the Treaty, and with no others.
The parties who appear before it are not private individuals subject to
its authority; they are themselves sovereign states which cannot be
compelled. You have no sheriff or other officer at your hand that can
compel the action of the parties which are before you, and therefore
this suggestion that there is a general jurisdiction in this Tribunal to
order the parties to do what it may be supposed proper to do is one
which I conceive has no just foundation, and one which cannot be
accepted in any degree without leading us into difficulties which it
would be impossible for us to find our way out of. We must look to
the Treaty for the powers of the Tribunal, and where the powers contained by the Treaty stop, the powers of this Tribunal stop also. My
conclusion from this is that we must dispose of this demand, which is
now put upon the second branch of the arlicle, according to the language of the Treaty. I have already explained what seems to me to
be its plain and manifest purpose. It is to enable one party to call
upon the other party who has put a paper in evidence to satisfy him
as to its authenticity by producing the original. We do not fall
within that category; we have not put this Eeport in evidence. We
have made no allusion to it even, and therefore the United States cannot be called upon under that clause of the article to produce it.
Now, I have thought it proper to state my views iu relation to this,
not because of the importance of this particular paper, but because it
is important that just views should be entertained of the powers of the
Tribunal at the very outset of its deliberations. Having said that, I
entirely concur with my learned friend that it is not worth while for the
United States to withhold this paper. It is not worth while. About
its weight, its importance in this controversy, commented upon to some
extent by our learned frjends on the other side, I will say nothing.   If ARGUMENTS  ON PRELIMINARY MOTIONS. 19
it happens to get before this Tribunal, it will be subject to our comments
and our criticism; and we are quite prepared to make them. We do
not conceive it to be worth while to withhold this papeu, and give any
sort of occasion or foundation for a remark to be made now and repeated
hereafter, that here is some very important document full of convincing
evidence, if the United States only chose to let it come out. We prefer
to waive it, and to remove the occasion for all such discussion as that
by putting the document before this Tribunal. As to whether the Tribunal has the power to look into it, that is a question for the Tribunal
itself to decide; and that question has quite extended considerations,
which I will not now anticipate, but which will be brought forward
speedily in the course of the motions which it has become the duty of
the Agent of the United States to make; and, with these observations,
I will defer any other remarks until those Motions are brought on.
The President. We ask you to put into writing the purport of your
reply, as we asked the British Government to state on paper their
Motion. So will you be so kind as to put on paper the substance of
your reply.
Mr. Carter.—Does the President mean by that the substance of the
argument?
The President.—No, the substance of the reply.
Mr. Phelps.—That shall be done.
The President.—If you will kindly give it to us categorically, we
shall see exactly what are the two contending Motions.
Sir Charles Eussell.—Sir, I should have thought that this discussion might have been a much briefer one after the statement made by
my learned friend, Mr. Phelps, in his very clear argument. His positions were two. He first contended that the Agent the United States
was justified in withholding the production of this document, and upon
grounds which would put it out of the power of this Tribunal to order
its production. That was his first position. His second position was
that he was willing to waive any objection and to allow the document
to go before the Tribunal, leaving the Tribunal to attach such weight to
, it as upon its examination they should judge it to deserve. If the matter had rested there, I should have been quite content not to have
troubled the Tribunal with any reply at all'. But my learned friends
have thought it right, and it would not be becoming in me to suggest
that therein they were wrong, to branch out into a number of collateral
topics, which I respectfully submit are not germane to the particular
point which is now before this Tribunal. But before I say a word or
two about those topics, I should like to be permitted respectfully to
observe upon a view of this position suggested by a question addressed
by one of the Tribunal to the Counsel when arguing the case of the
United States, namely, the question whether it was competent for Counsel by agreement at this stage to bring in any fresh evidence. That
was the purport of the question. Now, as that question, as I conceive,
involves a mistake of fact, I wish to remind the Tribunal again how
this matter of the Eeport of Mr. H. W. Elliott in fact stands in relation to the evidence already adduced. This is not, as seems to have
been suggested or supposed, the first introduction as evidence of the
Eeport of Mr. Elliott at all. The Eeport of Mr. EUiott is already legitimately in evidence in the original Case on behalf of Her Majesty's
Government. In the Appendix to that Case,—I have given the Tribunal already the reference—Volume 3, page 53,—this Eeport is referred
to, and, therefore, is in evidence,—to use the words of the Member of
the Tribunal, is already "adduced in evidence" as part of the case on
behalf of Her Majesty's Government. 20 ARGUMENTS  ON PRELIMINARY MOTIONS.
Mr. Justice Harlan.—Have you got the page of the case of the
British Government which refers to that Appendix?
Sir Charles Eussell.—I do not know that there is a reference in
the case to the particular page.
Mr. Justice Harlan.—I suppose it comes in under the general evidence filed with the case.
Sir Charles Eussell.—In the Appendix, yes. That is the way,
Sir, in which it comes in, and on that page there is given, first of all,
what purports to be a portion of a leader, a newspaper article, copied
from the journal to which I have referred, the Cleveland Journal; and
then follows what purports to be a part of Mr. Elliott's Eeport.
Mr. Carter.—Mr. Attorney, will you give me the place where, as you
say, the Eeport is itself put in evidence—adduced in evidence?
Sir Charles Eussell.—My learned friend did not hear my answer
correctly.
Mr. Carter.—I am afraid not.
Sir Charles Eussell.—There is no special reference in the case to
this any more than there is a special reference to the hundred and one
documents which are referred to here, but all of the documents in the
Appendix are put forward as proof in support of the case on behalf of
the Queen. Now, that being so, we have a further step to shew, that
it is adduced in evidence,—imperfectly adduced because we have not
the original document,—in part produced because we have not the whole
document. It is further referred to in the British Commissioners' Eeport
at page 77.
Senator Morgan.—The original Eeport or the supplemental Eeport?
Sir Charles Eussell.—The original Eeport. We have not yet got,
Sir, to the question of the supplemental Eeport of the British Commissioners, which is a distinct subject which my learned friends on the
other side have given us notice they intend to bring before this Tribunal and seek to exclude.
Senator Morgan.—I have not read that paper, and therefore I made
the enquiry.
Sir Charles Eussell.—I am speaking, Sir, of the original report,
and I wish to remind the Arbitrators how this matter stood. I do not
want to anticipate the subject of a later motion at all—that would be
irregular, but it was the view Her Majesty's Government took rightly
or wrongly (that we shall consider hereafter) that anything which bore
upon the question of regulations ought not to form part of the original
Case on behalf of Her Majesty at all. It is enough to say that the advisers of the United States took a different view, and in obedience and in
deference to their view and expressed desire we furnished them with, as
part of our original Case, that report of the British Commissioners, and
as the Agent of the United States and as my learned friends will recollect that was the subject matter of diplomatic correspondence which is
set out in the documents, the result of which, shortly, was that the
Government of the Queen standing by the view which they took of what
the Treaty contemplated, said they did not regard the Commissioners'
report as properly part of the original Case at all. The United States
insisted upon the opposite view, and in order to remove what was a
cause of friction in the preparation for coming before this Tribunal, the
Government of the Queen agreed to furnish then and there a copy of
the British Commissioners' report, which had been prepared long before;
and that was accepted by the Agent of the United States and agreed
by the Agent of the United States to be considered as part of the
original Case.    We have, therefore, in that Commissioners' report, ARGUMENTS  ON PRELIMINARY MOTIONS. 21
again, not one, but several, references to the report in question, Mr.
Elliott's report. And then we come to the Counter Case of the United
States, and I do not think, with great deference to the ability and
ingenuity of my learned friends, that they have made even an attempt
to answer the argument which we have founded upon their own reference in their own Counter Case to this report, because if they had contented themselves with saying nothing about it, or with making a passing reference to it without challenging its authenticity, we should have
been perhaps in a somewhat different position from that in which we
now stand. But a report can be referred to for one of two purposes.—
It can be referred to as affirmative and positive evidence in support of
a particular view, or views. I conceive this point to be important. A
report may be referred to and insisted upon for either of two purposes,
either for the positive purpose, the affirmative purpose, of supporting a
particular view, or for the negative purpose of saying that that report
does not contain something that it is alleged that it does contain. It is
the latter reference, and the latter use of that report, whicn the United
States representatives make in their Counter Case, because, not content
themselves with what my friend Mr. Carter has been pleased to call an
allusion merely to our allusion to the report, they challenge the authenticity and the reliability of our statement in evidence in that report, and
say that that which we say is part of the report is not part of the report
at all; and therefore theyare relying negatively in relation to that report
upon the statement that it contains nothing of the kind which we allege
in one respect it does contain.
Therefore it seems to me that that is an additional and a strong reason
why the whole document should be referred to. Whether adduced for
the purposes of affirmative or negative proof, in either case the document itself, when its authenticity is challenged, must and ought to be
produced.
Now so far I have been a little led to say what I should not have felt
called upon to say, because I wished to recall to the mind of each member
of the Tribunal what is the exact state of facts in relation to the reference to this report.
Now I come a little more closely to the matter. I agree most cordially with one observation of my learned friend, Mr. Carter, that the
framing of this Article IV—and I think he might even have extended
his statement—is of an exceedingly clumsy character. It is not such a
document as he would have settled, I think. It is not, probably, such
a document as we should have settled; but here it is. I do not suggest,
as my learned friends seem to think I have suggested, that this Tribunal can go outside the terms of this Treaty so as to take upon itself
powers and jurisdiction that the Treaty does not give it. Nothing of
the kind. No such idea is in my mind, nor did I intend to suggest any
such idea to this Tribunal; but when you come to matters which are
within the jurisdiction and authority of the Tribunal, then I say that
neither this Treaty, nor any Treaty, nor any agreement of reference that
ever was framed, does in its minute details meet with every consideration that may arise; and that within the fair terms of the Treaty itself,
and within the lines of jurisdiction given by the Treaty, it is, as to matters of mere detail, and matters of mere procedure, entirely within the
competence of this Tribunal to express its opinion as to what should or
should not be done. But I do not really feel that after the statement
of my learned friend, Mr. Phelps, I am called upon very much more to
argue that matter. I cannot conceive that when the representatives of
the United States on the one hand profess their willingness to produce 22 ARGUMENTS  ON PRELIMINARY MOTIONS.
the authentic document, which is already in evidence in the way that I
have pointed out, and when, the counsel representing the Government
of the Queen join in the request for its production, there can enter into
the mind of any member of this Tribunal the least doubt as to the perfect authority of this Tribunal to take that document, to consider it,
and to attribute to it such weight as the document itself may properly
have attributed to it.
My learned friend, Mr. Carter, made some reference to that report,
which I would respectfully suggest to this Tribunal was a reference he
was hardly entitled to make. He says that I relied upon the value of
the document. I did to this extent—to this extent only. I do not know
what is in the document, but I did say that from whatever point of view
it was to be looked at, it was impossible not to attribute importance to
a document which was made by a Commissioner specially authorized by
an Act of Congress to make the report in question upon the very subject
of seal life which enters so largely into the present controversy; and
when my learned friend, Mr. Carter, suggests hypothetical reasons why
that report has not been published, when he suggests that it may not
have been published because it may have been considered unworthy of
credit, that it may not have been published because it may not have been
thought worth publishing—if my learned friend may suggest hypotheses
of that kind, I suppose I may equally suggest a perhaps more natural
reason—that it was not published because it was not considered favorable to the view for which it was originally designed. But whether that
view, or my learned friends' hypotheses be the correct one is not the
point we are now considering.
Senator Morgan.—I understand that report was made sometime
before any negotiations—at least before the negotiations had taken
shape for the Treaty.
Sir Charles Eussell.—I am sorry to say, Sir, that again that is an
inaccuracy in fact. I want to explain, and it is the last matter that I
desire to explain, what the exact position of events, in the order of time,
was. The controversy which has resulted in the establishment of this
Tribunal began as early as 1886-1887; was going on through 1888,1889,
1890; and it was not until the 5th April, 1890, that Congress passed an
Act under which Mr. Commissioner Elliott was appointed to report upon
this very subject matter of seal life.
Senator Morgan.—I should like to enquire what is the date of Mr.
Elliott's report.
Sir Charles Eussell.—It is somewhere between April of 1890, and
December of 1890—between those dates.
Senator Morgan.—October, 1890.
Sir Charles Eussell.—I believe the 17th of November, 1890, and,
therefore, I think we may well be excused for urging the desirability of
this report being forthcoming, when it was a report directed to the subject matter of this controversy; and when the enquiry preparatory to
that report was entrusted to a person as to whom the highest character
was given by those charged with most responsible positions as representing the executive government of the United States.
I do not think Sir, that there is anything further that I have to trouble
the Tribunal with. I have already, in my original statement, put before
the Tribunal my construction of the two clauses of Article IV, which are
in question; and I do not desire to repeat myself. As I have said, I
should not have been: led into these collateral observations had it not
been that I have been tempted, I am afraid, to do so, by the observations
which have been made by my learned friends.   I am content to rest the ARGUMENTS on preliminary motions. 23
matter where my friend Mr. Phelps left it very early in the course of his
argument, namely, that the document shall be forthcoming, that the
Tribunal shall for itself judge of its character; but I wish again emphatically to say that this is not an attempt to introduce evidence not already
in the Case. The report is in evidence: imperfectly referred to, I admit,
because we had not the original document; and this application, to put
it plainly and shortly, is simply that there shall be in its best and most
authentic form before this Tribunal that report which is already, but, I
admit, imperfectly, adduced as evidence in the case.
Mr. Phelps.—In compliance with the request of the President, I have
reduced into writing the reply of the United States to this Motion, a
copy of which will be furnished to the Secretary before the adjournment
of the Court. With the permission of the Tribunal, I will read it.—
" The United States Government denies that Her Majesty's Government
is entitled, under the provisions of the Treaty, to any order by the Tribunal for the production of the document specified in the motion, as a
matter of right. The United States Government, however, is willing
to waive (so far as it is concerned) its right of objection, and to furnish
. to the Agent of Her Majesty's Government a copy of the document
referred to, for such use as evidence as the Tribunal may deem proper
to allow. Not conceding, however, in so doing, that either party at this
or any subsequent stage of the proceedings has a right to introduce any
further evidence whatever, upon any subject whatever, connected with
the controversy. And further stipulating that if the document referred
to in this motion shall be used in evidence at all, it shall be open to the
use of both parties equally in all its points."
Sir Charles Eussell.—Oh! clearly, that follows.
The Tribunal then adjourned for a short time.
Sir Charles Eussell.—Perhaps, as the Counsel for the United
States have read their answer to the motion, I ought to read to the
Tribunal the form of the order which I propose the Tribunal shall make.
The President.—Will you be kind enough to read it?
Sir Charles Eussell.—Yes, Sir. "That the Agent of the United
States be called upon by the Tribunal to produce the original, or a certified copy, of the Eeport made by Henry W. Elliott on the subject of
fur-seals, pursuant to Act of Congress 1890".
Mr. Justice Harlan.—You had better give the date of the report, if
you can, in that motion.
Sir Eichard Webster.—The 17th of November 1890.
Sir Charles Eussell.—We are not sure that is the date, however.
Lord Hannen.—Sir Charles, is that the form of the order which you
asked for?
Sir Charles Eussell.—That is the form of order which I at present
ask for.
Lord Hannen.—Precisely; I thought so.
Mr. Phelps.—We did not understand, Mr. President, that this
motion would be the subject of any order by the Tribunal upon the
party to produce this document. We understood that we produced it
by consent and furnished it to the Agent of Her Britannic Majesty's
Government, and that the Tribunal would make such order in respect
to its reception as it might deem proper. To produce this under an
order of the Tribunal would carry the idea that they were entitled to
an order for the production of the document, which we do not concede,
by any means. . .
Sir Charles Eussell.—The matter stands m this way, if I may say
so: We respectfully call for the order.   My learned friend answers that 24 .    ARGUMENTS  ON PRELIMINARY  MOTIONS.
by saying: "We say the Tribunal has no authority to make the order,
but we waive any objection of that kind and produce it." We are
merely fighting about words, I think, and not about substance.
The President.—Practically both parties are agreed; and the Tribunal in consequence directs that the document be regarded as before
the Tribunal, to be made such use of as the Tribunal shall see fit.
Mr. Phelps.—Yes.
Mr. Foster.—Mr. President and Gentlemen of the Tribunal, I desire
to submit the following motions, which I understand, by consent of
counsel, are to be considered together. I will read them first for the
information of the Tribunal and of Counsel:
Sir Charles Eussell.—I beg pardon, a moment; but I would
respectfully suggest as a matter of the order of procedure.—I am sure
that Mr. Foster will not understand that I make any personal objection—that this matter is in the hands of Counsel and it is Counsel who
make motions. My learned friends, Mr. Phelps and Mr. Carter, are, I
submit, the persons to bring this matter under the notice of the Tribunal.
The President.—We believe that is a matter to be decided between
the Agents themselves, and their Counsel. Have not the Agents
agreed upon the mode of proceeding before the Tribunal? You know
you both represent your Governments.
Mr. Tupper.—There has been, so far as I am concerned, Mr. President, no understanding or agreement on that point; but I took it for
granted that as I appear here to obey the orders of the Tribunal and
represent Her Britannic Majesty as Agent, and appear with Counsel,
that the argument of all questions coming to the attention of the Tribunal should be in the hands of Counsel; and with that I was personally most content. I supposed, of course, that the Agent of the other
side occupied a similar position.
The President.—You know the official representatives of both Governments are their Agents; the Tribunal knows no other official representatives but the Agents. The Counsel act as Counsel of the Government with the Agents. But you must agree between yourselves how you
wish to proceed.
Mr. Phelps.—General Foster was only about to read the motions.
He was not intending to address the Tribunal in support of them.
Mr. Foster.—Mr. President, before you announce your decision I
desire to make a statement. I fully concur with the President of the
Tribunal as to my duties. I appear here to present a motion on behalf
of the Government of the United States. When I have presented that
motion, it will be the pleasure of the counsel of the United States to
argue that motion. In the proper discharge of my duty, I rise for the
purpose of reading and laying before this Tribunal a motion.
The President.—I must ask you whether you protest against that
mode of proceeding? (Addressing British Counsel).
Sir Charles Eussell.—No, sir; I do not wish to do that at all. I
merely interposed because I thought Mr. Foster was under the impression that he thought it was necessary he should introduce it in this way,
and we did not conceive it to be so. The matter is in the hands of
Counsel who are by the fifth article orally to conduct the argument.
This is really part of the argument in support of a particular motion. ARGUMENTS  ON PRELIMINARY  MOTIONS 25
The President.—We will not recognize the Agents as arguing the
matter. We recognize them as representing the Government. Counsel will argue the matter and we will dispose of it.
Sir Charles Eussell.—We have no objection to that.
Mr. Foster.—I proceed:
The Agent of the United States desires to bring to the attention of the Tribunal
of Arbitration the fact that he has been informed by the Agent of Her Britannic
Vslttajjesty, in a note dated March 25th ultimo, that he has sent to each of the members
of the Tribunal copies in duplicate of the Supplementary Report of the British Commissioners appointed to inquire into seal life in Behring Sea.
The Agent of the United States, in view of this information, moves this Honorable Tribunal that the document referred to be dismissed from consideration, and be
returned to Her Majesty's Agent on the ground that it is submitted at a time and in
a manner not allowed by the Treaty.
I follow that with a second motion for the information of the Tribunal:
The Agent of the United States moves this Honorable Tribunal to dismiss from the
Arbitration so much of the demand of the Government of Great Britain as relates to
the sum stated upon page 315 of the Counter Case of said Government to have been
incurred on account of expenses in connection with proceedings before the Supreme
Court of the United States;
And, also, to dismiss from the Arbitration the claim and request of the same.Gov-
ernment, mentioned on said page 315, that the Arbitrators find what catch or catches
might have been taken by pelagic sealers in Behring Sea without undue diminution
of the seal herd during the pendency of this Arbitration;
And, further, to dismiss from the Arbitration the claim of the same Government,
mentioned on the said page 315, to show payments by it to the Canadian owners of
sealing vessels;
And that all proofs or evidence relating to the foregoing claims or matters, or either
of them, be stricken from the British Counter Case, and in particular those found on
pages 215 to 229 inclusive, of Volume II of the Appendix to said Counter Case.
The ground of the foregoing motion or motions is that the claims and matters aforesaid are, and each of them is, presented for the first time in the Counter Case of the
Government of Great Britain, and that they are not, nor is either of them, pertinent
or relevant by way of reply to the Case of the United States, or to anything contained therein, except so far as the same may tend to support claims for claniages distinctly made in the original Case of the Government of Great Britain, and that so far
as tuey come under that head the matters are irregular as being cumulative only.
I have copies of these motions sufficient to supply the Arbitrators and
Counsel of the British Government. I will place them in the hands of
the Secretary.
The President.—The Tribunal will be ready to hear the first motion
of the United States immediately argued; but the Tribunal must reserve
for a later stage of the proceedings the argument upon the second
motion, which we do not consider as relevant in the present stage of
our proceedings. If the Counsel of the United States wish to speak
upon the first motion, we will ask you to restrict your argument to this
first motion. I mean the motion which relates to the Supplementary
Eeport presented by the British Government.
Mr. Phelps.—The reading, Sir, of the motion to which the President
has just alluded, and to which, of course, with great deference to the
intimation of the Tribunal, I shall at this time confine myself, has disclosed to the Tribunal that it is in itself a motion of very considerable
importance, and that it is of still greater importance in the effect of the
questions to which it gives rise upon other evidence and other parts of
the Case that will be found to be extremely material.
Since the last meeting of the Tribunal, when the written arguments
were submitted, and when the case, so far as the hearing of it is concerned, would have been at an end, if the counsel on either side had not
desired an oral argument, or if the Tribunal had not directed it, because,
as the Tribunal has pereeived, the oral argument is not required by the
Treaty; it is a privilege accorded to the counsel on either side; it is a 26 ARGUMENTS on preliminary motions.
right reserved to the Tribunal to direct it, if in their judgment it should
become material. Since then, the Case, so far as the requirements of
the Treaty are concerned-was completed, and would have been finally
submitted, the Agent of Her Britannic Majesty's Government has laid
before the Arbitrators, and furnished to us, a printed copy of a new
document, which we have not examined, purporting to be a supplemental report of the Commissioners appointed on the part of Great
Britain under the provisions of this Treaty. I cannot doubt that this
step was taken under the advice of my friends upon the other side, in
the belief that it was in the exercise of a right. The existence of such
a right is the serious question which this motion presents.
In the first place. I desire to call your attention to the provision in
the Treaty under which the report of these Commissioners comes at any
time or in any event before the Tribunal. It is to be found in Article
IX.   I may usefully read the whole article:
The High Contracting Parties have agreed to appoint two Commissioners on the
part of each Government to make the joint investigation and report contemplated
in the preceding Article VII, and to include the terms of said agreement in the
present Convention, to the end that the joint and several reports 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 follows:
Each Government shall appoint two Commissioners to investigate conjointly with
the Commissioners of the other Government all the facts having relation to seal life
in Behrings Sea, and the measures necessary for its proper protection and preser-
The four Commissioners shall, so far as they may be able to agree, make a joint
report to each of the two Governments, and they shall also report, either jointly or
severally, to each Government on any points upon which they may be unable to
These reports shall not be made public until they shall be submitted to the Arbitrators, or xx it shall appear that the contingency of their being used by the Arbitrators cannot arise.
I will now read Section 7 of the Treaty referred to in Article IX:
If the determination of the foregoing questions	
the five questions propounded in the preceding Article.	
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 proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring's
Sea, the Arbitrators shall then determine what concurrent Regulations outside the
jurisdictional limits of the respective Governments are necessary, and over what
waters such Regulations should extend; and to aid them in that determination the
report 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.
It will be perceived that the Treaty provides, in the first place, for
the appointment of a Joint Commission, in the hope—I am justified in
saying certainly, so far as the Government of the United States is concerned, and I doubt not, so far as Her Majesty's Government is
concerned—in the hope and confident belief that such a conclusion
would be reached by that Commission as should obviate the necessity
of any further controversy, negotiation or arbitration. If the Commissioners had been fortunate enough to agree, such would unquestionably
have been the result; but it is provided—and we shall have occasion
in the course of this discussion to point out how these provisions originated in the negotiation,—I am dealing with them now only as they
find place in the Treaty—it was provided that if this Commission should
fail to agree upon such Eegulations as the Government should be willing to adopt, then the Arbitration which is now in progress became
necessary, which otherwise never would have taken place; and in that ARGUMENTS  ON PRELIMINARY MOTIONS. 27
event, one of the questions to be submitted to the Tribunal, in the contingency that certain questions, certain claims of right on the part of
the United States Government should not be supported, was what
Eegulations should be prescribed by this Tribunal for the concurrence
of the two Governments, for the object which both had in view in all
these negotiations, in all these proceedings, from beginning to end—
the protection and preservation of the seal race in the Behring Sea
and the North Pacific.
Now, the reports thus provided to be laid before the Tribsnal if that
question should engage their attention, are made evidence. They are
made evidence irrespective of the character of their contents. It i?
beyond question that whatever these Commissioners chose to embody
in the report, their opinions, their information, their conjectures—all
become evidence for what they may be thought to be worth in the
estimation of the Tribunal, but not to be rejected. It is not open to
either party to say in respect to the contents of these reports, " This
passage is hearsay; that is conjecture; the third is Opinion; the fourth
is vague and general information, and therefore it does not constitute
legal evidence, and must be discarded in the consideration of the case ".
We cannot say that, because the Treaty which provides for the appointment of these Commissioners, which provides to them certain opportunities for informing themselves makes their report evidence; not
conclusive evidence, not in all parts of it equally forcible evidence, but
evidence that is to be admitted.
It will be perceived, therefore, that the evidence afforded by the
reports of these Commissioners on both sides—and these observations
apply equally to both sides—have an unusual character; that is to say,
much of their contents, which if it were undertaken to be put into the
Case through the mouth of any other witness might be properly objected
to as not evidence, is made evidence here. And it will be seen, furthermore, that unquestionably it was the expectation of the Treaty that
the reports of the Commissioners on both sides would engage the
serious consideration of the Tribunal. It is made not only evidence to
a larger extent than other evidence could be; it is placed upon somewhat a higher plane than any other evidence would be, so far as the
authors of it are concerned.
Now these Commissioners failed to agree, except to a limited extent,
there was a Joint Eeport to a small, but in our judgment, to a very
important, extent, which was laid before the Governments, and has
already undoubtedly attracted the attention of the members of the
Tribunal. But on many points of great importance they failed to
agree; and the consequence was that under the provision of the
Treaty, separate reports were made by the British Commissioners to
their Government, and by the American Commissioners to theirs; and
those reports have found their way, properly enough, into the Case, and
they are already before the Tribunal for such consideration as they may
be thought to be entitled to.
After this Case is closed, after all the successive steps which the
Treaty provided for have been taken, after the Case and the Counter
Case and the written argument have all been submitted; after the
Case has come to an end, except so far as the decision and award of
the Tribunal is concerned, unless one or more of the parties, or the
Tribunal itself should avail of the right under the Treaty to have an
oral argument, we are presented with a printed volume, purporting to
be, as of course it is, a supplemental report of the British Commissioners.   Now, what is that?   As I have said, we have declined to 28 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
examine it or to receive it. I cannot speak of its contents, therefore, in
particular. It is a body, unquestionably, of facts, statements, allegations and matter which becomes evidence; which the Tribunal must
treat, if they receive it at all, as evidence; which may be, and we are
bound to presume if our learned friends care to put it in at this stage,
is very important evidence. It may be, for all we know, the evidence
1 that may determine the conflicting points in this case. It may be the
evidence that shall bring you to a conclusion upon this, that and the
other important question in dispute; the new evidence contained in
the supplementary report may settle these questions and bring us to a
decision that, without it, we should not have.
' Now then, what is the exact proposal? Without yet looking into
the letter or the spirit of this Treaty, what is the exact proposal that
is involved by the offer of this evidence at this time? It is that there
shall be put into the case, not only subject to the consideration of the
Tribunal, but commended by the terms of the Treaty to the especial
consideration of the Tribunal, a new and important body of testimony,
similar, E presume we have a right to suppose, to their previous report.
Can we reply to it? Can we contradict it, explain it, impeach it,
modify it? The door is absolutely closed. It is not in the power of the
Tribunal to permit any such reply. It is not in our power to make it,
if the Tribunal should undertake to give us the opportunity.
The evidence upon this subject is at the ends of the earth. It is in
Alaska and British Columbia and California and Asia. It is all over
the world. It is utterly impossible for us to attempt at this day to
introduce any evidence in reply to this document; and it is equally
impossible for the Tribunal, who are called upon by the Treaty, if possible, to determine this Case within three months from the time of its
submission, to afford us the opportunity.
The result is that if our learned friends are right in supposing that
they are entitled to put in this evidence at this time, a mass of evidence
goes into the Case without the possibility of reply, presumably of the
highest importance. Now, I shall be glad to know if in the proceedings
of any tribunal that ever sat judicially for any purpose, since the principles of justice came to be known, any such proceeding was permitted,
as that a party shall have his cause decided upon the determination of
a question of fact, based upon evidence that he never saw and never
had an opportunity to reply to ? Is it possible to carry this question
another step unless it is found that the Government of the United States
has been foolish enough to have brought itself by a distinct agreement
into such an extraordinary position as that? An arbitration to settle
facts that are in grave dispute, and must be determined upon evidence.
On what evidence ? Evidence ex parte, evidence that the party against
whom it was produced was never confronted with and never had an
opportunity to answer, evidence that, so far as the Tribunal knows,
may be true or may be subject to complete contradiction.
Now, let us look at the provisions of this Treaty and see upon what
ground it has been claimed by the learned Counsel or may possibly be
claimed by any Counsel, that this state of things shall be brought to
pass. It will be seen in the first place, that so far from this Treaty in
any of its parts, or in any of the spirit that is to be derived from any of
its parts, contemplating such a result, or leaving it open to inference that there may be such a result, it is sedulously excluded. It is
provided in the 3rd Article. " The printed Case of each of the two parties, accompanied by the documents, the official correspondence, and
other evidence on which each relies, shall be delivered in duplicate to ARGUMENTS  ON PRELIMINARY  MOTIONS. 29
each of the Arbitrators and to the Agent of the other party as soon as
may be after the appointment of the members of the Tribunal, but within
a period not exceeding four months from the date of the exchange of the
ratifications of this Treaty ". That is the first step, that as soon as possible, and not later than four months from the ratification of the Treaty,
the Case, the documents, the allegations, the proofs which each party
relies upon shall be not merely laid before the Arbitrators but shall be
furnished to the other party.
Senator Morgan.—"Printed".
Mr. Phelps.—Printed, and laid before the other party. For what
purpose? To give the other party that opportunity of reply without
which no administration of justice can take place, or ever undertook to
take place. That is what it is for. The next, Article 4, provides that
" Within three months after the delivery on both sides of the printed
Case, either party may, in like manner, deliver in duplicate to each of
the said Arbitrators, and to the Agent of the other party, a Counter
Case, and additional documents, correspondence, and evidence, in reply
to the Case, documents, correspondence, and evidence so presented by
the other party ". There is the opportunity on each side for a complete
reply to the evidence contained in the printed Case previously delivered.
Then it is provided in the next clause,—I need not read it in extenso—
that if either party finds that time too short to complete his reply, he
may give notice within a certain time, and an additional period of sixty
days beyond the three months is allowed him. So sedulous is the
Treaty in respect to giving this complete opportunity of reply, that, in
addition to the three months allowed primarily, it is at the option of
either party to require two months longer.
Then follows the provision that was under discussion this morning,
by which it was carefully provided that, if any documents were alluded
to or specified on either side in support of their case, on demand of the
other side they should be forthcoming, and that if any document was
put in evidence, the other side might demand a sight of the original or
a certified copy if he questioned its authenticity. And I am reminded
that in pursuance of this provision, Her Majesty's Government did ask
for the extension of sixty days for the completion of their Counter Case
which was, of course, accorded. It was a matter of right. Then Article 5: "It shall be the duty of the Agent of each party, within one
month after the expiration of the time limited for delivery of the Counter
Case on both sides, to deliver in duplicate to each of the said Arbitrators and to the Agent of the other party a printed argument shewing
the points and referring to the evidence upon which his Government
relies. Either party may also support the same before the Arbitrators
by oral argument of Counsel; and" the Arbitrators may, if they desire
further elucidation with regard to any point, require a written or
printed statement or-argument, or oral argument by Counsel, upon it."
Those are the successive steps by which the case.is to be brought
before the Tribunal; first by the Case, second, by the Counter case or
reply, third, by the written argument, fourth, if it is desired by the
parties or the Tribunal, by the oral argument.
Now let me remark again, as I had occasion to remark this morning,
there is no line in this Treaty which professes to confer upon the Tribunal any authority over this system of procedure except to enforce it
as it reads. It is not allowed to the Tribunal to say that, though the
Case is required to be filed within four months, it may be filed within
six. It is not allowed to the Tribunal to say that the Counter Case, if
not filed within five months, may be filed in seven, or that the written 30 ARGUMENTS ON PRELIMINARY MOTIONS.
argument provided for may be furnished two or three months after the
Case. All that discretion, as everybody knows, does attend the jurisdiction of any established judicial Tribunal having general judicial
powers. But in this case these two countries having constituted a
special Tribunal for the decision of this special Case alone, have thought
proper to not merely constitute the Tribunal, but to define and limit
and prescribe with the utmost particularity all the steps of its procedure.
Then, recurring to Article 7, it has been said on the part of Her
Majesty's Government, because as we shall see, this subject has been
the occasion of correspondence, it has been assumed that the question
of regulations submitted to the Tribunal was not to be taken up or
entered upon until the hearing upon the previous questions in the Case
had been completed and the decision of the Arbitrators announced;
that is to say, that the Treaty provides for special separate arbitrations
by the same Tribunal. That the Case is to be completed, argued and
submitted upon the five previous questions, that a decision is to be
reached and an award is to be made, and then if that award should be
one way, that a new hearing upon new evidence, upon new argument
was to take place on question six. Well, passing for this moment, the
question whether there should be a separate hearing, which we altogether deny as a construction of the Treaty, the enquiry is, upon what
evidence are you to enter upon the question of the Eegulations, if you
ever do enter upon it—not at what time, not upon what oral argument,
but upon what evidence are you to enter upon a question which depends
exclusively upon evidence and proof?
Other questions in this case involve important considerations of law,
and some of them possibly are purely questions of law. The question
of Eegulations, if the Tribunal should ever reach the determination of
it, is purely a question of evidence submitted to a Tribunal who are not
chosen for their familiarity with the facts upon which it depends, who
from the very nature of their high position and employment must be
absolutely ignorant on the whole subject till they are enlightened by
evidence. What Member of the Tribunal, what gentleman who could
even have been thought of as a proper Member of it is expected to
understand the business of seal life and seal killing and seal breeding,
and all its incidents that now encumber this case to such an extent that
one can never be sure that he has mastered it?
"The Arbitrators shall then determine what concurrent Eegulations
outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Eegulations should extend, aud to aid
them in that determination the report 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." What other
evidence? Howtaken? When? Howrepliedto? How brought before
the Tribunal? The Treaty is absolutely silent, unless it is the evidence
which in the Articles I have already read is provided for, to be set forth
in the Case and the Counter case, and to be dealt with in the Argument.
While the Tribunal is invested with no power to take testimony, or to
order the taking of testimony, or to fix a limit of time within which it
should be taken, or the manner in which it should be made known to
the other side—while there is absolutely no suggestion of such a provision, nor the conferring of any general jurisdiction that would include
it, still it is spoken of as "such other evidence". Why it is the irresistible conclusion from the reading of this Treaty, taking it upon those
common rules of construction that regard in the first place the object in
view, and secondly, the context of the whole instrument and not detached ARGUMENTS  ON  PRELIMINARY MOTIONS. 31
words which standing by themselves may be consistent or inconsistent
with one construction or the other. If the words are not decisive in
their meaning, if they are not conclusive, if they are open to interpretation the resort is to the context of the Treaty, and the object and
situation of the parties, as throwing the best light upon the meaning of
the terms.
Therefore passing altogether the question of when the Tribunal is to
hear argument upon this question, what evidence are they to consider
when they do undertake to determine it. That is made perfectly clear
when we find that no evidence can come before it in any way that the
Treaty provides or in any way that the Treaty authorises the Tribunal
to provide, except in the Case and the Counter Case. That is so carefully, so sedulously provided, in order to secure to both parties the right
of putting in all their evidence and the right of replying to all the evidence that is introduced on the other side. It is said however, that
under the peculiar wording of article nine there is further encouragement to be found for the suggestion that other evidence may be submitted, at least so far as the reports of the Commissioners are concerned.
These reports, says the Treaty, shall not be submitted to the Arbitrators if it shall be found that the contingency of their being used by the
Arbitrators eannot arise. It is said that this contingency is the contingency of the decision; that it is the contingency whether the Arbitrators shall decide in favor of or against the claims of right which the
United States Government have set up. We regard that construction
as altogether erroneous. It is the contingency of the Arbitration itself—
the contingency of there being any Arbitration, not the contingency of
the decision on the previous question that the Arbitration shall reach,
if it takes place.
Before, however, I proceed with what I had begun to say on the subject of the term " contingency " in the ninth article, I should have drawn
the attention of the Tribunal to the history of the language of article
seven, which I have been previously considering. With your permission, I will recur to that subject for a moment, long enough to point out
how this language came to be employed. The Treaty, as I need not say
to any judicial eye that has perused it, is a piece of patchwork. It has
been reached in the process of a long negotiation, here a little, and there
a little—now a provision then a provision, and most unfortunately it was
not submitted, after all these pieces of patchwork were brought together,
to the revision of such a legal mind as would have tried to make its language consistent with its spirit. It is idle to deny that the document
is full of expressions, each of which taken by itself would be found to be
altogether inconsistent with something else.
We are required for instance to furnish a written Argument within
thirty days after the Counter Case is filed; but the Treaty requires that
in twenty days the Arbitrators shall assemble and "immediately" enter
on the decision of the Case. The written argument then comes in ten
days after the Tribunal have decided the case. That is only an illustration.
Mr. Justice Harlan.—Itisnot "decide", but, "proceed to examine".
Lord Hannen.—And "consider it." No one could have been so sanguine to imagine it could be decided immediately.
Mr. Phelps.—It is to be presumed that a Tribunal of such distinguished members as this would not have considered this case for ten
days without forming some opinion upon it.
Senator Morgan.—We might have spent that much time in the question of what our powers are, might we not? 32 ARGUMENTS  ON PRELIMINARY  MOTIONS.
Mr. Phelps.—Well, Sir, that is not for me to say, but no doubt some
time may be usefully spent on that point. What I was about to remark
in regard to Section 7 is this—that it was originally proposed by the
United States in very different language. In the first volume of the
Appendix to the United States Case, at page 286, the Tribunal will find
the first draft of article 6, which is very different from the language that
appears in the Treaty. I need not stop to read it. It is enough to
remark, as it is iu print before you, that it is a totally different Article
from the one that is now in the Treaty. It was objected to by Great
Britain, and upon what ground ? Solely upon the ground that Her
Majesty's Government was sedulously anxious (you will find that in
the letter of Lord Salisbury to Sir Julian Pauncefote of February the
21st, 1891, which is in the same volume at page 294) in framing this
Treaty, to separate the question of Eegulations from the claim of right.
The position of Her Majesty's Government was, that to regulations—
which are not a matter of right;—but are for the discretion of the Tribunal—the concurrence of Great Britain is necessary, and though the
Tribunal has power to prescribe that the concurrence shall take place,
yet at this hearing the question of right on the part of the Government
to make its own Eegulations, and the regulations to be prescribed by
arbitration, if it has no such right, should not be considered together.
It was in reply to that, as the correspondence shows, if you will turn to
that, the letter at page 310 of the same volume from Mr. Wharton to Sir
Julian Pauncefote of the 25th of June, 1891, was written. He quotes
Lord Salisbury's objection to the letter to which I have previously
referred in these words: "In the note of Lord Salisbury of the 21st of
February last,"—the letter I last referred to, "he states his objection
to the sixth proposition, as presented in the letter of Mr. Blaine of
December 17th, 1890, in the following words.
" The sixth question, which deals with the issues that will arise in case
the controversy should be decided in favour of Great Britain, would, perhaps, more fitly form the substance of a separate reference". That letter
I may observe, was the first and last allusion in all this protracted correspondence to the idea of making the question of Eegulations a separate reference. "Her Majesty's Government have no objection to referring the general question", he proceeds to say—"to referring the general
question of a closed time to arbitration, or to ascertain by that means
how far the enactment of such a provision is necessary for the preservation of the seal species; but such reference ought not to contain words
appearing to attribute special and abnormal rights in the matter to the
United States". And the previous draft that I have referred yon to on
page 286 was open to that objection. It was so drawn that it appeared
to confer upon the Tribunal the power to prescribe Eegulations which
presupposed rights of jurisdiction on the part of the United States.
So that if Eegulations had been so prescribed by the Arbitration, it
might not have been clear whether they proceeded on the ground that
they were Eegulations which the United States had a right themselves
to prescribe in the exercise of an existing jurisdiction, or whether in the
absence of any such jurisdiction they were regulations such as the Tribunal thought, by the concurrence of the Nations, ought to be adopted.
Senator Morgan.—Do you mean jurisdiction within Behring Sea?
Mr. Phelps.—I do not remember at this moment the application of
the language to that suggestion, whether it was to Behring Sea alone,
or to the North Pacific, but we shall claim, when we come to the discussion of that subject, that the Arbitration refers to all the waters which
the seals frequenting Behring Sea habitually resorted to. ARGUMENTS  ON PRELIMINARY  MOTIONS. 83
Senator Morgan.—That was introduced into the negotiation later.
Mr. 1 helps —Yes. Mr. Wharton on the part of the United States
proceeds as follows:—"1 am now directed by the President to submit
the following, which he thinks avoids the objection urged by Lord Salisbury".   Then he submits the draft which is now found in the Treaty.
Senator Morgan.—Wonld you allow me to ask, if it does not inter-
rapt yon, what was the date of the submission of that draft?
Mr. Phelps.—That letter is dated the 25th Jane, 1891. The letter
of Lord Salisbury stating this objection is dated February 21st; there
was intermediate correspondence, of course, but the decisive reply
which met the point of the letter of February 21st did not come till
Jnne 25th, and then it was satisfactory to Her Majesty's Government,
and the Article was put into the Treaty in the language Mr. Wharton
Mr. Phelps.—Perhaps it was rather more, but, at all events, four
This review of the language of that Article will show that there is no
particular significance to be attached to these words "further evidence":
that they are, bo far as that section is concerned, what might almost be
Mr.
Phelps.—
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Now Sir I recur to what I had begun to say on the subject of the
nd "'contingency" in the ninth article, because we have been apprised
previous correspondence of the ground upon which the proposal to
ye this evidence is intended to be supported. The reports it is said
all not be made public till submitted to the Arbitrators, or until it
all appear that the contingency of their being used by the Arbitrators
nnot arise.   In the first place, that has reference merely to the pub-
B S, PT XI 3 34 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
lication of the reports; but still it is useful to see what the term "contingency" means there, that is to say, what it refers to. Does it refer,
as my learned friends will contend, to the contingency of the Tribunal
deciding against the United States on the five questions that are first
propounded, or does it refer to the contingency of there being any arbitration at all? There again we are enlightened by referring to the
correspondence. When we look into the history of that Article which
was likewise the "child of travail", when we see how that article came
to pass in the form which it has assumed, we see what that contingency
means. The original theory or desire of both these Governments, I
repeat, was that this Commission would settle the dispute; that if they
went to the islands—if experts selected for the purpose examined the
subject exhaustively—more exhaustively than you can examine it on
evidence, that they would be sure to agree, inasmuch as they started
with a common object.
That was the view of the Governments; but whether all the Commissioners acted with that intent or not, is a very different question, which
will engage your attention at a later stage of this hearing. That the
Governments started with the idea on both sides that this valuable animal should be preserved, in this its last resort on earth, from extermination as a common interest they have made plain in various ways. Why
it was that they did not succeed will be the subject of discussion before
we cease to trouble you with the consideration of this Case. It is
immaterial now. These two provisions that are now embodied in the
same Treaty were originally separated.
Great Britain for a long time, (I cannot detain you to wade through
all this correspondence, but if you should care enough about this point
to run through it, you will perceive that it supports what I say, and I
think that my learned friends on the other side will not question it,)
Great Britain for a long time was pressing the proposal of" this Joint
Commission. It was not received by the United. States with favor in
the first place, but still it was pressed with diligence and ability by the
British Government, and finally the United States gave way, and.two
Agreements were made, (one for the joint Commission) which are now
embodied principally in article 9 of the Treaty of Arbitration. If the
Commissioners agreed, there would be no occasion for any Arbitration.
Lord Hannen.—Where is that embodied in the Treaty? Is that
anywhere embodied in the Treaty that, if the commissioners agreed the
Arbitration would not go on?
Mr. Phelps.—No, your Lordship, it is not. I am referring to the
diplomatic correspondence, which, upon the reference I shall endeavor
to give will shew very plainly that the Government hoped and expected
that the Commissioners appointed would settle this dispute; if they
failed to settle it then it was to be referred to arbitration. If they settled it, the questions of right, as the Government then regarded the
Case, became immaterial, as all that the Government of the United
States wanted was the preservation of the seal. They did not care to
have a decision upon an abstract question of immaterial rights. It is
the interest of no nation to challenge decisions such as that.
I shall have occasion, when the report comes to be considered, to
enlarge upon these points; all that I am upon now is the question what
does the term "contingency" refer to in the ninth Article? I say that
the previous correspondence shows that it refers to the contingency of
any Arbitration being necessary at all, not to the contingency of what
decision the Arbitrators should make if they made any. Mr. Blaine had 1
.IMINARY MOTIONS 35
Pauncefote to Mr. Blaine of April
accepted by the American Government. It was not accepted, but not
upon any difficulty about the point I am now talking about; whoever
will take the trouble to go through the pages will see that the draft then
submitted by Sir Julian Pauncefote which is a very elaborate draft from
Lord Salisbury founded the objection not on this point but others; and,
Treaty contains these points. This is the first Article: "The High Contracting Parties agree to appoint a mixed Commission of Experts who
shall enquire fully into the subject and report to the High Contracting
Parties within two years from the date of this Convention the result of
their investigations, together with their opinions and recommendations
on the following questions". Then it states five questions, which I need
not read, having reference only to the best method of protecting the
seals. Then Article 2: "On receipt of the Eeport of the Commission
and of any separate Eeports which may be made by individual Commissioners, the High Contracting Parties will proceed forthwith to determine
aforesaid, and any Eegulations so agreed upon shall be embodied in a
further Convention to which the accession of the other Powers shall be
Then the third Article is.—"In case the High Contracting Parties
should be unable to agree upon the Eegulations to be adopted, the questions in difference shall be referred to the Arbitration of an impartial
Government who shall duly consider the Eeports hereinbefore mentioned, and whose Award shall be final, and shall determine the condi-
Great Britain I repeat, pressing to have the subject determined by
the mixed Commission, willing to provide thatif the Regulations reported
Arbitration should take place to determine what Regulations should be
Governments.   This ultimately took a different shape, and resulted in
other Powers sh
SH1
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lyme
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I." 36 ARGUMENTS on preliminary MOTIONS.
This patchwork took and re-took shape, and was turned over in this
correspondence, which was very protracted; and when, at last, one section after another, under different circumstances, and at different times
had taken form and had been brought together, from that it will be seen,
by travelling through this correspondence from beginning to end, where
this word "contingency" came from.
It is the contingency of there being any Arbitration; not the contingency of the decision; and yet, as'has been pointed out by one of the
learned Arbitrators, when you come to embody them together, and put
in not only Article 9 but Article 7, there is room for saying that since
the Arbitrators are not to determine the Eegulations until they had
determined the rights; peradventure the contingency that is referred to
in Article 9 is the decision that is spoken of in Article 7.1
The President.—Possibly, Mr. Phelps, if you are going to begin a
new point it is better for us to adjourn till to-morrow.
[Adjourned till to-morrow at 11.30.] THIRD DAY, 5™ APRIL 1893.
The President.—Now, Mr. Phelps, will you kindly continue your
argument ?
Mr. Phelps.—I had the honor, Mr. President, on yesterday to consider at a length for which, in view of the importance of this question,
I shall not apologise, the construction of this Treaty as bearing on the
questions of when and how the evidence on which the Tribunal has to
proceed shall be submitted to its consideration. I have spoken of this
Eeport which it is proposed to put in, as a piece of evidence merely;
evidence invested, however, by the terms of the Treaty with a broader
scope and a higher character than is afforded to other evidence. I
remarked that I had not examined the Eeport, and that I could not
speak from knowledge in respect to its contents. I have been since
informed, and if I have been inaccurately informed I shall be subject
to the correction of my learned friends, that this Supplemental Eeport,
as it is called, of the British Commissioners, contains in a sort of
Appendix a new mass of evidence; depositions of witnesses bearing
on the questions of fact in the case. So that it is not only proposed
to put in at this stage, if my information is right, a further Eeport of
the Commissioners, but a mass of testimony of witnesses testifying
upon oath in respect of the facts reported. Now, if that is so, is it
possible to carry this discussion any further? Can it be conceived,
after the particular provisions of this Treaty in respect of the time and
manner of" the submission of the evidence, that at this late stage, when
we are just rising to address the Court in an oral argument that might
not have taken place at all,—for as I have pointed out the Treaty does
not "require" it; it only "allows" it,—that at this stage, not merely
this supplemental Eeport that we are objecting to, but a mass of ex parte
testimony coming from witnesses we never saw, that we cannot possibly reply to, that contains facts ever so erroneous, untrue or impeachable we cannot show it,—that such evidence is to be brought in, and
perhaps turn the decision of the case, on the important facts that
underlie it.
Two theories have been propounded by the respective parties, upon
the construction of the Treaty, in respect to the method of procedure.
As I have remarked, this point has been the subject of some diplomatic discussion, which I shall ask the attention of the Tribunal to, and
the views of the other side have been communicated to us in a letter
which accompanied, I believe, the notice that this Eeport would be
offered, so that we are advised of the position which the Counsel for
Her Majesty's Government take. Their theory is this: That there are
to be, in effect, two hearings, two Arbitrations, two awards, first upon
the five questions that are propounded in the Treaty, next in the
event that those questions should be decided in favor of the British
Government, a further hearing upon the subject of Eegulations, and
that on that hearing fresh evidence, other evidence not theretofore in
87 38 ARGUMENTS  ON PRELIMINARY MOTIONS.
the case, is to be admitted. That is their view. We deny altogether
that the treaty contemplates any such thing as two hearings or that
the Case discloses any propriety for such a method of procedure; I do
not say necessity, but any propriety.
The language of the article is: "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 Kegulations for the proper
protection and preservation of the fur seal in or habitually resorting to
Behring sea, the Arbitration shall then, determine ", not that they shall
"then hear", not that they shall "hold a new session to receive evidence not before placed in their hands ", not, I repeat, that there " shall
be a second Arbitration", but "that they shall then determine".
It is the common case, the very common case in judicial proceedings,
where a case presents different questions, the decision of one of which
one way supersedes the necessity of deciding the others;—as where a
liability in an action is denied, if that contention is sustained, and it is
found that the defendant is not liable, there is an end of the case; if
the decision is the other way, and it is held that the defendant is liable,
then arises and requires to be determined, the question of damages.
Not upon a second hearing. All those questions are argued together
to the Court; and they determine so many of them as is found to be
necessary to the disposition of the case. The same remark applies to
a great variety of cases. There are very few cases of any magnitude
that turn necessarily and entirely upon one question. There are usually alternatives of decision. A multitude of points are argued, any
one of which may be, in the judgment of the Court, decisive. This Case
is no more than that, and provides for no more than that; and the
language of these Articles is perfectly consistent with such construction, even though taken alone you might say it was not inconsistent
with the other.—Taking a few words here, or a line there, you might
say that is consistent with the other construction; but if there is any
patent or latent ambiguity in the language that is employed in these
articles, it is disposed of as far as the question of evidence is concerned,
when you find that the only opportunity for putting in evidence at all
on any question, is confined to the Case and to the Counter case. I
admit that it is conceivable that you may hear this Case twice, that
you may hear the five questions and decide them, and then hear the
sixth, though the Treaty calls for no such thing, and the ordinary course
of procedure precludes it. But that you shall hear it upon any other
evidence than that which the case already discloses, is impossible,
unless you adopt the alternative that you will hear it upon evidence
which the Treaty furnishes no means of taking or submitting, and no
possible means of reply to by the side against whom the evidence is
produced. Our construction of the Treaty therefore is that the whole
case is to be heard upon the evidence in the Case, and in the Counter
case; and what the proper discrimination between the two is I shall
have occasion to ask the attention of the Tribunal to hereafter.—But
the hearing is to proceed upon the evidence that is already in the Case
and the Counter Case, and there is no provision for, and no possibility
of admitting further and future evidence of any kind under the strict
provisions of this Treaty. This question is not new; I mean it is not
new in the history of the Case. The United States, to begin with,
never having conceived for a moment of any other construction as possible, and never dreaming that any such other construction would be
set up, put in to its Case, its original Case, all its evidence upon every ARGUMENTS  ON PRELIMINARY MOTIONS. 39
point and particular. It was all printed, and went into the hands of
the British Government at the time when the Case was delivered, on
the 1st September, the time fixed in the Treaty.
Mr. Justice Harlan.—It was due September 7th.
General Foster.—September 5th I think.
Mr. Phelps.—It was some early day in September, and we conformed
to the time imposed by the Treaty, whatever it was. It all went in, the
evidence we stand upon today, except that which is contained in our
Couuter Case, which is strictly in reply to the evidence on the other
side. We received at the same date the British Case, and, to our astonishment, not a word of evidence was brought forward in it upon auy
question in the Case, except the questions propounded as to the previous possession and occupation by Russia.
That is a question which we shall regard and treat as altogether subordinate. It depends chiefly upon documents; documents that are not
new, which everybody had seen before. The British Case, therefore,
contained nothing except a re-print of documents and papers relative
to the old title asserted by Russia over the Behring sea, and the Treaties
between Great Britain and Eussia and Great Britain and the United
States, and the correspondence that preceded and followed them. That
is what they furnished us. I am reminded by Mr. Foster that there is
something about damages in their case, but that is a small matter. On
all the merits of the case, with which you will be called upon to deal,
merits that cannot be approached, as I said yesterday, except on the
basis of evidence, for they all rest on questions of fact, they gave us
nothing at all. That was immediately made the subject of correspondence between the Governments, and on page 139 and following, as far
as page 150 of the Counter Case of the United States, will be found
that correspondence. I respectfully ask the Members of the Tribunal
to peruse it. I am not justified in taking up the time to read it here;
but I respectfully ask its perusal. The Government of the United States
expressed its surprise that no evidence had been submitted on the part
of Her Majesty's Government on any of the questions, which it was
perfectly well known by long dispute and correspondence, were those
on which this controversy turned, aside I mean from the Eussion question. It remarked that, if it was the pleasure of Her Majesty's Government to submit these questions without evidence, their right to do so
was undoubted. It was not for us to suggest what evidence they should
put in, or that they should put in any; so that if we were informed by
them that it was not designed to submit evidence, we nad nothing further
to say. We could not, however, believe that to be possible; and, therefore, we claimed that the Treaty required they should put it into their
Case, as we had done, so as to give us an opportunity to meet it; otherwise we must go to trial upon their whole Case without any opportunity
to reply to it by any evidence; and, as we pointed out, with a very scanty
opportunity, if the evidence was contained in the Counter Case, even
to deal with it in argument. Because the Couuter Case was received
as late as the 3rd of February; the first meeting of the Arbitrators was
on the 23rd of February; we had to find our way across the Atlantic,
and not only to make but to print and even translate, which involved
printing twice, such written arguments as we desired to submit; so that
not only were we deprived of the possibility of taking any evidence in
reply, first because the Treaty did not admit of any evidence after the
Counter Case, and secondly, because the time did not allow it. We had
not even time to deal except very hastily in the written argument that is
now before you,-—with the evidence on the other side, we pointed out 4U ARGUMENTS  ON PRELIMINARY MOTIONS.
also that the American Commissioners' Eeport was included, as it should
have been, iu our Lase. The separate Eeport made to our Government
by the American Commissioners was furnished, but the British Eeport
vas withheld. We pointed out in this letter the gross injustice of
having a Eeport made up by the British Commissioners after having
been furnished with the Eeport of the American Commissioners as the
result of their joint investigation. Lord Eosebery was sufficiently
struck with the force of those considerations to state, or we should not
otherwise have known it, that the British Eeport had been prepared in
point of fact and placed in the hands of their Government before our
Case had been received, so that we were in error in supposing, what
we were justified in supposing until we were otherwise informed, that
the British Eeport was made up after inspection of ours. Then he conceded so much as this, that he furnished us at that time with a copy of
the British Commissioners' Eeport, being willing to treat it as a part of
their Case as we had offered, because in this communication we had
said "If you will furnish your evidence now, we will accept it as part
of the Case; the time is past,—but we do not stand upon that." They
sent us the British Eeport, saying that they would treat it, as we had
proposed to do, as part of the Case; but he declined to accept the views
of the United States Government as to the other questions.
Then the question arose what the Government of the United States
should do, whether it should go on in the face of the assertion of the
other side that it was proposed to put in their whole testimony when
we could not answer it, nor even deal with it (except the British Commissioners' report), or whether the Arbitration should terminate then
and there. The question may be asked why it was not terminated.
That is not for me to answer. If I had been in control of the policy of
the Government, instead merely of the conduct of this case, it would
have terminated. I never would have consented to a proposition that
seemed to me gross in its injustice and humiliating to the Government
that submitted to it. In my opinion to go on upon such a proposal
with a proceeding that professedly in its theory, in its object, was to
dispose by friendly Arbitration of questions that had arisen between
two nations, of whom neither had the right or desire to suppose that
the other wished for anything but fair dealing and fair discussion, was
not to be thought of. But wiser Counsels undoubtedly than mine prevailed and the Government of the United States decided to go on.
They did not accept, acquiesce in, or agree to the theory of the British
Government. In the last letter of Mr. Secretary Foster will be found
stated with great clearness and precision the attitude of his Government.
I state the substance without taking up your time to read it. It was
in effect that to revoke and stop the Arbitration was in the estimation
of the Government calamitous. They thought perhaps that in receiving the British Eeport they had obtained most of the evidence on the
other side, perhaps substantially all the evidence, and above all, that
they would stand in the judgment of the Arbitrators at last as to what
Evidence was legitimately before them under the provisions of this
Treaty, and what was not.—And they were willing to trust themselves
to the judgment of the Tribunal, and to reserve the objections which
they still insisted upon to that mode of trial until the case had come to
be heard.
Senator Morgan.—Did the British Government protest against
putting in the Eeport at the time? ARGUMENTS  ON PRELIMINARY  MOTIONS. 41
Mr. Phelps.—The British Government said, as you will perceive
from the correspondence and the letter of Lord Eosebery, that they did
not conceive that we were entitled to it, but as we had complained of
the manner in which they had proceeded, they were willing to furnish
it to us. They furnished it to us very much as we furnished to our
friends on the other side the Eeport that was under discussion yesterday, not as a matter of right, but as a matter of favor.
Lord Hannen.—A concession.
Mr. Phelps.—Yes, a courtesy.
Senator Morgan.—Was it furnished as constituting part of the Case.
Mr. Phelps.—It was furnished to be received as a part of their
Case. That is the way it was received, but in making it a part of their
Case, they did not admit that they were obliged to do so, but that in
view of the considerations we had presented as to its fairness, they consented to do it. If they had furnished their other evidence, there would
have been no ground of complaint. The case went on, and on the 3ld
of February we received the Counter Case which is before you, which
you will perceive contains a great mass of evidence, of which the Eeport
of the British Commissioners which we had previously seen was but a
small part. A great amount of ex parte depositions—we do not complain of their being ex parte—ours are ex parte—that is the necessity of
the case. But the fact that it was necessarily ex parte made it far more
important that we should be furnished with it in time to reply. But
the testimony is not only ex parte, but came to us on the same day that
it came to you. We saw this testimony when you saw it, and we never
saw it before. Then it became necessary for Counsel to determine what
course to take. An obvious course was to apply to the Tribunal in
advance of the hearing to strikeout all the evidence upon the merits—
all the evidence that should have been in the Case—I mean all that was
not properly in reply to our Case. What would have been the consequence of that motion if we had made it? If the Tribunal had
accepted our construction of the Treaty, and held that its Articles
required that their evidence in chief should go into their Case, and that
the Counter Case should be confined to evidence in reply, and had
therefore stricken out the whole body of this evidence, that would be,
of course, an end of the Arbitration. We could not expect that my
learned friends would go on with this case if all their evidence was
stricken out. We could not ask them to do it. If we had succeeded
therefore in eliminating from this case all the evidence on the part of
Her Majesty's Government, we should have brought the Arbitration to
an end, because, as I have before remarked, there is no power in the
Tribunal to enable them to replace it. It would have been only an
indirect way of revoking the Arbitration, if we had prevailed by the
decision of the Tribunal upon such a motion. We examined the evidence, and decided, unfair and unjust as it was, and much as we should
have liked to reply to much of it, that we could sustain our case notwithstanding, and we would go on.
Now, upon the top of that, after our written argument is submitted,
and when we rise to address the Court, a new batch of affidavits or
depositions, or whatever they should be called, and a fresh report by
these industrious gentlemen whose labors have pervaded the case from
beginning to end, and whose conjectures and inferences and hearsay
and everything else that they think proper to include, are made evidence
by the Treaty, are proposed to be put in. What is the consistency of
the position on the other side ? They say that in their view all evidence
bearing upon Eegulations should be reserved till after the Award of the 42 ARGUMENTS  ON PRELIMINARY  MOTIONS.
Tribunal upon the previous five questions; that our evidence on the
subject printed in our Case, is irregular, and should not have been put
in at all; that they were not only justified but required to withhold
theirs, and that it is we who are irregular as far as the question of Eegulations is concerned. What is this evidence? What does it bear on?
If it bears only on Eegulations, why is it now offered on their theory?
The time has not yet come for putting in any of it, if their construction
is correct. Why is their Commissioners' Eeport, which is by the
Treaty solely confined to the subject of Eegulations—why is that in?
In answer, it may be said, to our complaint. Then why is the rest of
this evidence offered, if the time for it has not yet come? On the other
hand, if it bears on the merits of the Case, and as these questions are
inextricable, it does bear upon the merits of the Case, and you will find
in the printed arguments of my learned friends that it is all relied
upon all the way through on all questions, why was it not included
in the Case where we could meet it? By this inconsistent construction
which in its result is so unfair, they get into the case for all purposes
through their Counter case, the body of their evidence, in such maimer
that we are entirely unable to reply to it by testimony in contradiction,
impeachment, or explanation. The Tribunal will seethe importance of
this. They will see why we have felt justified, at a length that I fear
has been wearisome, in discussing the construction of the Treaty on
this all-important point. The United States Government point out in
their correspondence that if they had dreamed of such a construction,
they would, not have entered into this Treaty. They need not have
pointed it out. Is there a man who is compos mentis that would enter
into a contract to try an important cause before any Tribunal, upon
the terms that his adversary should hear and have possession of his
evidence, and have an ample opportunity of replying to it, and that he
should have no opportunity to meet the evidence that was brought
against him? Is there a Court that ever sat that had any discretion
on the subject that would permit such a thing to take place? Is it
conceivable that the United States Government were so anxious to
afford the world the example of an international Arbitration that they,
understanding it, entered, into an agreement to try this case upon
those terms ? Mr Blaine, who had ceased to be Secretary of State,
and is now passed away, but under whose administration this Treaty
had been negociated—one of the last acts—the last act, I am reminded,
of his life that had.reference to any official business, was to subscribe
his name to the declaration that he never dreamed of such a construction, and that it never was suggested from the other side in the whole
course of the proceedings. It was an unnecessary declaration, because
to suppose the contrary would be to stultify the Secretary of State.
The President.—Is this opinion of Mr Blaine laid down in an
official document which you mention.
Mr. Phelps.—He had ceased to be Secretary of State, so that it
would not be proper to describe it as an official document,   lt was fur-  .
nished to the Secretary of State and transmitted to the British Government, and is printed in the correspondence to which I have just
referred the Tribunal, and will be found in page 150.
The President.—Will you be kind enough to read it if it is not too
long?
Mr. Phelps.—It is from Mr. Blaine to Mr. Foster, November the 8th
1892. Mr. Foster was then Secretary of State: "After an arbitration
had been resolved upon between the American and British Goverments,
a special correspondence between the Department of State and Lord ARGUMENTS  ON  PRELIMINARY MOTIONS. 43
Salisbury ensued, extending from early in July to the middle of November, 1891. The. various subjects which were to be discussed, and the
points which were to be decided, by the Arbitrators in the affair of the
Behring sea were agreed upon in this correspondence. A month later
Sir Julian Pauncefote, the British Minister, and myself arranged the
correspondence and reduced the propositions to a Memorandum which
was signed by us on the 18th December." (That sustains the remark in
respect of the history of this Treaty that I made yesterday.) " Subsequently, the questions which had arisen between the two Governments
concerning the jurisdictional rights of the United States in the waters
of the Behring sea were expressed in the form of a Treaty concluded at
Washington on the 29th February, 1892. This Treaty was confirmed
by the Seriate on the 29th March, 1892, ratified by the President on the
22nd April, ratifications exchanged on the 7th May, and proclaimed on
the 9th May, 1892. In all these steps, including the correspondence with
Lord Salisbury, the Memorandum concluded between Sir Julian and
myself, and the Treaty that was ultimately proclaimed on the 9th May,
1892, and which was negotiated by Sir Julian and myself, not one word
. was said or intimated respecting the question now raised by the British
Government as to a secondary submission of evidence after the first
five points set forth in Article VI had been decided by the Arbitrators.
It was never intimated that any other mode of proceeding should be
had than that which is expressed in Articles III, IV and V of the
Treaty." Articles III, IV and V of the Treaty are those which provided for the Case, the Counter Case, and the Argument. That is Mr.
Blaine's statement. I will read, as the Book is before me, the concluding passages of Mr. Secretary Foster's last letter to Lord Eosebery in
terminating this correspondence, and enclosing to him this paper signed
by Mr. Blaine. He had argued this Case very fully and very clearly,
as it seems to me, through this correspondence; and be concludes:
"Having thus expressed the views entertained by the Government of
the United States upon the argument of Lord Eosebery in support of his
interpretation of the Treaty, it remains for me to add that I am
instructed by the President to say that he appreciates the spirit of
equity and liberality in which Lord Rosebery, while insisting upon his
own interpretation, practically to some extent at least, and I hopefully,
yields to the Government of the United St.ites the benefit of its interpretation by furnishing to the latter the separate'Eeport of Her
Majesty's Commissioners, with the permission that the same be treated
as part of the original Case on the part of Great Britain. If, as I
believe and assume, this Eeport contains substantially all the matter
which Her Majesty's Government will rely upon to support its contentions in respect to the nature and habits of fur-seals, and the modes of
capturing them, I entertain a confident hope that all further difficulty
upon the questions discussed in this note may be avoided. I deem
it necessary, however, to say that the Government of the United States
will, should occasion arise, firmly insist upon its interpretation of the
Treaty, and that it reserves the right to protest against and oppose the
submission to, and reception by the Arbitrators of any matter which
may be inserted in the British Counter Case which may not be justified
as relevant by way of reply to the Case of the United States."^
The President.—That is previous to the Counter Case having been
given over.
Mr. Phelps.—Yes.
General Foster.—Three months before. 44 ARGUMENTS ON PRELIMINARY MOTIONS.
Mr. Phelps.—Three months before, and as I remarked a little while
ago, the Government were undoubtedly actuated in a large degree by
the opinion assumed by Mr. Foster that in getting the British Commissioners' Eeport we had substantially the whole of the evidence, and
that the question as to the submission of the evidence in chief in the
British Counter Case, though important, was practically one neverthe
less, that we might not find it necessary to insist upon. Then three
months after comes the Counter Case which is before you, and we find
ourselves, as might have been anticipated, in the dilemma I have stated.
In asking you to reject the evidence it contains—and we believe we
could make it very clear that it ought to be rejected—we should, only
be asking you to terminate the Arbitration at this late stage. We did.
not take this responsibility. And therefore we must undertake to go
on and deal with this evidence in the best way we can.
These are the grounds, Sir, upon which we protest emphatically
against the reception of this supplementary report or any other future
evidence bearing upon the questions in this case that are to be determined by the Tribunal. It will be for the Tribunal to justify, if it is
to be justified, the anticipation of the United States, that they might
trust themselves without terminating this Treaty, as we should be completely warranted in doing, in the hands and the judgment of a Tribunal
selected not to represent one party pr another, but to do justice.
There is another objection to this Eeport to which I must briefly call
attention. I have discussed it thus far as being a piece of evidence,
just as I would have discussed it, had it been the deposition of a witness, and indeed, as I have said, a great deal of it is said to be made up
of the depositions of witnesses.
Sir Charles Eussell.—That is not so.
Mr. Phelps.—But there is a special objection in our apprehension in
the reception of this document, even if other evidence were now admissible. If it were held that the case is open to the parties; and if it is
open now, it would be open till the award is made, and evidence might
be put in after the argument; if it were held that evidence is now
admissible, this document is not admissible. This Eeport, with the
extraordinary weight and quality which is conferred upon it by this
Treaty, as a very cursory reference to the duties of this Commission
will show, should not be received.
You will excuse me perhaps for reading again what has been read
several times, namely Article 9, because it has not been read with a
view to this point. " The High Contracting Parties having agreed to
appoint two Commissioners on the part of each Government to make
the joint investigation and Eeport contemplated in the preceding Article VII, and to include the terms of the said Agreement in the present
Convention, to the end that the joint and several Eeports 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 follows: Each Government shall
appoint two Commissioners to investigate,"—how? " Conjointly with
the Commissioners of the other Government, all the facts having relation to seal life in Behring's Sea, and the measures necessary for its
proper protection and preservation. The four Commissioners shall, so
far as they may be able to agree, make a joint Eeport to each of the two
Governments, and they shall also report, either jointly or severally",—
even in the event of disagreeing they are still authorised to report
jointly, though not required to do so,—"to each Government on any
points upon which they may be unable to agree.   These Eeports shall ARGUMENTS on PRELIMINARY MOTIONS.
not be made public", and so forth.   The investigation was to be i
investigation.   It was not the absurd provision of the Gover
Alaska to gather evidence on its side, leaving the other side to take
That needed no Treaty. It was to appoint Commissioners" whoseposi-
tion corresponded to your own, to investigate jointly for the benefit of
both Governments the main facts underlying the questions in dispute;
to report jointly if they agreed, and jointly if they chose if they were
unable to agree, or severally; and then it was provided most properly
that the conclusions and recommendations and discoveries of such a
joint Tribunal, I may almost call them, —a Commission joint in its
character, in which both Governments were represented—that those
should be laid before the subsequent Tribunal, if it became necessary
to have a subsequent Tribunal. It is most proper that they should be
laid before you, but the force they are likely to have when they come
before you will very likely depend upon the judgment of the Arbitrators as to how far they are or are not in compliance with the letter and
the spirit of the Treaty.
Now, the function of those Commissioners was exhausted when these
Eeports were made, as far as the other Government was concerned.
They became fundi officio when they made their reports and submitted
them. There is no provision in the Treaty and no contemplation, that
half the Board after that, without the knowledge or concurrence of the
other half, should either make another expedition up to Alaska or should
sit down m London and make an investigation, and make a large body
of evidence and a new Eeport on those questions, and that, at a late
stage of the Case, that should come in and be laid before you as evidence. The whole spirit of the Treaty rebuts and repudiates any such
idea as that. What they chose to do for their own Government after
that is no affair of ours. They may make as many Eeports and investigations for their own Government, if their Government choose to
employ them to do so, as they like.
Mr. Justice Harlan.—Do you know when the investigation was made
upon which this supplemental Eeport was based?
Mr. Phelps.—No better than Your Honor knows. I know nothing
at all about it. We never heard of this supplemental Eeport till the
same time that you did.
Sir Charles Eussell.—I beg you pardon; you had notice in the
Counter Case that we should present such, but only on the question of
Eegulations, not on the incidents of seal-life.
Mr. Phelps.—I never read it. It is undoubtedly there if my learned
friend says so; but it never attracted my attention.
Mr. Justice Harlan.—What you mean is, that the document was not
seen by you?
Senator Morgan.—It must have been in existence when the Counter
Case was handed in, if an allusion is made to it in the Counter Case.
Lord Hannen.—It is only reserving a right to present it in future.
Senator Morgan—I spoke of the existence of the Eeport. It must
have been in existence at the time that the Counter Case was delivered.
Sir Charles Eussell.—When the time comes, I will explain it
exactly.
Mr. Phelps.—There is a great deal more to be said about these
Eeports; but not now.   That arises on the merits of the Case, and I do 46 ARGUMENTS  ON PRELIMINARY  MOTIONS*
not intrude them on this question, which is only as to the admissibility
of this one.
Now, I say that the Treaty does not warrant.it. 1 should have said
that, in pursuance of this provision, the United States threw those
Islands open to this Commission, furnished vessels, and extended every
possible facility. They went there together,—the four Commissioners,
as they should have done. They went at the same time; but they
declined the offer of the United States to furnish the same vessel, Mr.
Foster reminds me; so that they went on their expedition, and our
Commissioners made their Eeport, but the Islands were thrown open
either to themselves or with us. Then comes a Eeport which will
engage your attention at the proper time; and now comes this proposition, that after this is all over without any new investigation, for it will
not be pretended that they have been up there again, I think,—at a late
stage in the case they can sit down and make a new document which
shall become evidence in the Case? It would not be evidence, a large
part of it, if it come in at any time, if it is not invested with that character by the Treaty, and, unless it comes in according to the terms of
the Treaty, it does not acquire that character. I insist, therefore, in
respect to this document that, aside from the general objection to the
admission of any evidence at all, at this stage this is especially obnoxious because it is an attempt to exercise functions by the Commissioners
that had been exhausted under the terms of the Treaty by their previous Eeport. Lord Eosebery was struck, as I have said, when Mr.
Foster pointed out to him these Eeports that were to be the result of a
joint investigation and perhaps a joint Eeport.—"We have given you
ours; yours is to be made up in reply to ours."—"Oh! no," said Lord
Eosebery, "that is not so. Our Eeport was completed, and in the hands
of Her Majesty's Government on such a day"—some date in June,
I think,—"so that you are in error in supposing that the British Commissioners have availed themselves of the chance of examining your
Eeport before they made theirs." And he furnishes the Eeport. How
is it now? Are these men parties to this cause? Have they a perpetual right to be heard, and, when their conclusions are refuted by evidence, to come in and swear over again or report over again, which is
the same thing in its effect, and gather more testimony and more hearsay and conjecture and suspicion, until the thousand tongues of rumour
are exhausted, and still make it evidence.
There is only one other point, and it is the last remark, I have to
trouble you with. One other ground for the admission of this evidence
was stated by the Agent of Her Majesty's Government in the communication to the Agent of the United States Government, which accompanied, I believe, the notice of this Eeport, that he thought the Tribunal
would be glad of any "trustworthy" information that would aid them
to determine the questions before them. " Trustworthy" in the estimation of Her Majesty's Government is ex parte testimony which has been
concealed from the other side and no possibility of reply allowed! Is
that trustworthy information? Through what back door of the Tribunal is it expected that such evidence would make its appearance in
Court if it made its appearance at all? Trustworthy? If the Treaty
does not quite admit it, you must really accept it, because it is so
"trustworthy"! I cannot add anything to the force of that adjective,
and I will not try. How far we are entitled to comment upon the evidence in the Counter Case that has thus come in against our protest,
and as we say utterly out of order will come up hereafter. We are now
engaged only in protesting that this addition should not be made to it. ARGUMENTS ON PRELIMINARY MOTIONS. 47
Sir Charles Eussell.—Does any body add anything?
Mr. Carter.—I designed to close the discussion, but I desire brevity
and I shall not offer anything further at this point.
The President.—I call your attention to the fact that we have only
half an hour before the interruption of our meeting.
Sir Charles Eussell.—I cannot conclude in that time.'
The President.—I dare say not. I mention the fact beforehand in
order that you may dispose your argument in consequence.
Sir Charles Eussell.—If you please, Sir.
When, Sir, we received the Notice of motion which the representatives of the United States thought proper to send intimating their
intention to make the application which has been put forward by my
learned friend we anticipated a discussion which would have been of
a legal character. In other words, we anticipated a discussion upon
what was the true interpretation of the Treaty under which and under
which alone this Tribunal derives its authority, and we certainly did
not anticipate that this would have been made the occasion of importing into the discussion the heat, the extraordinary heat, that my learned
friend has manifested, and still less did we anticipate that it would
have been made the occasion for flinging very broad, very wild, and,
as I shall hope to demonstrate, utterly unfounded suggestions of
attempted injustice on the part of Her Majesty's Government.
Mr. Phelps.—I did not mean to say that, Sir Charles. I meant to
say that the result was injustice.
Sir Charles Eussell.—Well I am glad to have given the opportunity, at all events, for a disclaimer of something which certainly was
conveyed, in our apprehension, by some things that my learned friend
has said. My learned friend has made these high sounding appeals to
justice and has told us that there can be no justice of judgment unless
there is justice of procedure, what is that—(my learned friend will not
suppose I mean to be offensive in saying it)—but a neatly dressed platitude? This Tribunal is, I admit,—nay, it is part of our Case,—governed—governed absolutely—by this Treaty, I begin by making the
admission, that if, according to the true construction of that Treaty,
we are not entitled to use and to refer to what has been called the Supplementary Eeport, we will bow to the judgment of this Tribunal as a
matter of course. But I hope to make it apparent, not I will say to a
majority only of this Tribunal, but I hope to make it apparent to each
individual member of this Tribunal that we are perfectly within our
rights according to this Treaty in the course that we have pursued and
in claiming admissibility for the document in question. Now I shall
best express the condensed sense of the argument which I have to
address to you by reading, as I know it is the desire of the Tribunal
that I should read, our short answer to the contention on the other
side, which has been reduced into writing, and which, as I think the
President desired in the previous Case, should be handed in to those
who have charge of the record of our proceedings. We submit " that
the supplementary report of the British Commissioners dated the 31st
January 1893 presented solely with reference to the question of Eegulations and under the provisions of the Treaty of Arbitration of the
29th of February 1892 is properly presented to the Tribunal and should
be considered by them in the event of their being called upon to determine pursuant to Article VII what if any concurrent Eegulations are
necessary." Now, Sir, you will observe that puts in the fore ground a
point obscured in the argument of my learned friend it puts in the fore
ground the fact that this Supplementary Eeport is not conversant with, 48
ARGUMENTS  ON PRELIMINARY  MOTIONS.
does not pretend to deal with, is not intended to be used in relation to
any of the questions of right raised in this Arbitration, and this brings
me to the very heart of this contention. This brings me to, in fact,
the point which alone can supply any justification for the grave importance which my friends have sought to attach to this discussion. What
is that point. What is the heart of this mystery. It is this. That
my learned friends desire that this Tribunal should deal with all the
questions embraced within the purview of this Treaty as if they were
but one question, that this Tribunal shall be able to mix up and to consider in the same range of thought and argument two classes of questions which are distinct in themselves and are made distinct beyond
any question in the Treaty. And therefore the first point to which I
desire to address myself is to make it apparent, because it is the foundation upon which my whole argument rests that not only are there two
sets of questions, or two divisions of questions, I should prefer to say,
differing in their nature and as to which different considerations as to
evidence apply, but that this division marks out a further division of
the functions of this Tribunal itself in the consideration of those two
divisions.
Now you have before you, Sir, copies of the articles of the Treaty,
and I will not trouble you by more than a passing notice of articles
III, IV, and V, which deal with the presentation of the Case, on each
side and which in Article V contemplates, not as a matter of grace or
favor, as my learned friend seemed at one moment to suggest, but as
a matter of right, oral argument before these Arbitrators upon the
questions involved; and then machinery having been provided in those
Articles III, IV, and V, for the presentation of the Case on each side,
by Case Counter Case and Argument, Article VI proceeds to set out
five points which may be shortly described by me—I think correctly
described,—as claims of right upon the part of the United States in
relation to the subject matter in controversy; and not of right merely,
but of exclusive right. The first question is the exclusive jurisdiction
claimed in the Behring sea, and the exclusive rights in the seal fisheries which it is alleged were asserted and exercised by Eussia. That
point being made on the part of the United States, in order to support
what is put forward more or less seriously—very seriously indeed in
the diplomatic correspondence which led to the Treaty, but which, if I
may judge from the arguments presented, and the Counter Case of the
United States, is now going to take what my learned friend euphemistically called a subordinate place in the arguement—the second question is "How far were these claims of jurisdiction as to the seal fisheries"—"of jurisdiction", that is to say these exclusive claims, "as to
seal fisheries recognized and conceded by Great Britain". Need I do
more than point out in passing to the Jurists whom I am addressing
that upon that allegation was intended to be asserted a claim by the
United States based upon long user, acquiescence, and recognition of
certain supposed rights, so that Great Britain was to be excluded from
the consideration of those laws which regulate territorial jurisdiction
and cognate rights, and was in the language of lawyers to be estopped,
to be prevented from saying that these rights so recognized had no
legal foundation or support in International Law at all.
The third question is subsidiary to these: " Was the body of water
now known as the Behring's sea included in the phrase' Pacific Ocean',
as used in the Treaty of 1825 between Great Britain and Eussia, and
what rights, if any, in the Behring's sea were held, and exclusively
exercised by Eussia, after said Treaty".   Again a question of right. ARGUMENTS  ON PRELIMINARY  MOTIONS. 49
Allegation on the part of Great Britain that, whatever may have been
the antecedent state of things, that passed- away and was removed by
the Treaty of 1825, because the Treaty of 1825, according to the contention of Great Britain, gave in express terms rights of fishing
amongst other rights—I should have said it recognized—not gave, but
recognized rights of fishing, amongst other rights in the Pacific Ocean,
which was a comprehensive phrase, intended to include the Behring
sea. No, said the United States, the Behring sea was left, and left
designedly out of the Treaty, and whatever rights Eussia claimed and
exercised to Behring sea were left untouched by that Treaty. But
now, according to my learned friend, this has become a subordinate
question. He has referred to that distinguished man now passed
away, a man whose ability both Hemispheres have recognized and
acknowledged, some of whose able communications and arguments upon
this matter I shall have to consider at a later stage of this discussion.
But what did he say upon this question? Writing on the 17th December 1890. I am referring to page 263 of the Appendix to the Case of
the United States, Volume I—he wrote in this language:—"Legal and
diplomatic questions, apparently complicated, are often found, after
prolonged discussion, to depend on the settlement of a single point.
Such, iu the judgment of the President, is the position in which the
United States and Great Britain find themselves in the pending controversy, touching the true construction of the Eusso-American and
Anglo-Eussian Treaties of 1824 and 1825;" and then, after dwelling
upon that for a moment he goes on, "If Great Britain can maintain
her position that the Behring sea at the time of the Treaties with Eussia of 1824 and 1825 was included in the Pacific Ocean the Government
of the United States has no well grounded complaint against her;"
and yet we are now told by my learned friend that the importance of
this question is receding into the background and is, after all, only a
subordinate question. Why it suits the exigencies of the discussion
of my learned friend to assume that position will become apparent
when it is more germane to the matter in hand to enlarge, as 1 must at
a later stage enlarge, upon this branch of the argument and of the
controversy. What is the next question ? Did not all the rights of
Eussia as to jurisdiction and so on, pass by the cession of 1867 when,
as you know, the United States of America acquired by cession of that
year 1867, the district of Alaska and the rights properly incident to
the territorial cession of that country—again supporting their derivative title ? Fin ally. "Has the United States any right, and, if so, what
right of protection or property in the fur seals frequenting the Islands
of the United States in Behring sea when such seals are found outside
the ordinary three mile limit?"
Now I have read these questions, I would submit,—and I appeal to
the judgment of any single Arbitrator who hears me—and I do not
understand my learned friend even to suggest the contrary—that every
one of those questions depends upon right. As I say, I do not understand that to be disputed. But what follows from that? Why not
only that there is a distinction as to the character of the questions,
but that this distinction involves—necessarily involves—a distinction
in the functions which this Tribunal have to exercise in relation to
those questions, if there be found also in the Treaty questions which
do not depend upon right. What is that distinction ? Well, it is clear.
You are a distinguished body of Jurists. You are chosen because you
are so. You are here not to~make the law, not to declare what the law
ought to be, but you are to adjudicate upon questions of right as the
B s, PT XI 4 50 ARGUMENTS ON PRELIMINARY  MOTIONS.
law is. In other words, in this respect, your functions are distinctly*
absolutely, solely, the functions of Judges and of Jurists.
' But I pass from those questions, and I have to show if I can that the
Treaty contemplates by this Tribunal the settlement of other questions
which are not dependent upon right, which are not dependent upon the
assertion of exclusive right; but you are asked (the questions of right
being decided), to apply your minds as an impartial Tribunal, and
representing not one side but both, recognizing the fact that there are
other rights than the rights of the United States and other rights than
the rights of Great Britain, to determine what regulations are necessary for the proper protection and preservation of the fur seal. You
are then dealing with an area of the open sea in which the rights of
mankind are common and you are asked, in the interests of all to say
what would be the just, the necessary, the proper regulations addressed to
the object, the main object, of this Arbitration, the preservation of the
fur seal.
Senator Morgan.—Does the learned Counsel insist that that is a judicial function on our part f -
Sir Charles Eussell.—Not at all. I am glad that the Member of
the Tribunal who has addressed me is recognizing the distinction that I
am drawing. No. When you get to that part of the Case, you will
have to do what in the interest of all concerned is expedient. You have to
stand between these parties who are in controversy, recollecting that each
of them has a right which must be regarded and borne in mind and that
. outside the immediate parties to the controversy there are others who have
rights as apart of mankind.
Senator Morgan.—In that view, if I understand the Counsel, we
have something to ordain in that particular view of the case, and not anything to adjudicate.
Sir Charles Eussell.—You have to recommend and to recommend
with authority.
Senator Morgan.—"Determine" is the language.
Sir Charles Eussell.—Yes, determine.
Lord Hannen.—"Determine".
Sir Charles Eussell.—Determine I agree that is .what you have to
do; and without pledging myself for the moment to the acceptance or the
non-acceptance of the word " ordain" as distinguished from the word
"determine", as distinguished from the word "adjudicate" which possibly
is correct.—I can convey my meaning, I think, intelligibly; you have,
under the first head, to deal as Judges and Jurists, under the second
head, you have to deal as just men ordaining a set of rules which the
parties have left to your determination and which you are asked to
determine in view of all the interests affected. That I take to be the
grave distinction.
Well then in what order is this question to come before you. If my
learned friends are right or my learned friend Mr. Phelps is right in
his contention, there is no reason why he should not begin at what I
would call the wrong end of this discussion—why he should not say
" Well, I have already gone the length of admitting that these questions
of right are gradually receding into the background, I do not attach
importance to them. I will ask the Tribunal to begin with the Eegulations"!   Could he do so?
Mr. Justice Harlan.—What I wish to ask just here is whether, in
your use of the word rights you are referring to the rights that maybe
involved in the answers to the first four questions, or do you embrace
also the rights involved in Question 5? ARGUMENTS on preliminary motions. 51
Sir Charles Eussell.—Unmistakably Question 5,—unmistakably,
beyond any possibility of argument whatever, yes, and the contrary
has not even been suggested in argument by my learned friend Mr.
Phelps; absolutely.
Senator Morgan.—If the learned Counsel will indulge me for a
moment I wish to call attention to the first question under Article 6,
"What exclusive jurisdiction in the sea now known as the Behring's
Sea, and what exclusive rights in the seal fisheries therein did Eussia
assert and exercise prior and up to the time of the cession of Alaska
to the United States?" The point I wish to call the attention of Counsel to is whether the "assertion and exercise prior" to that period by
Eussia is not the proposition that we have to answer instead of the
rightfulness of the exercise and assertion.
Sir Charles Eussell.—I think both; either would be enough for
my purpose, but I think both. But now I follow the question addressed
to me by another member of the Tribunal and I would desire to give a
little fuller answer to it. How are these questions introduced? I was
putting to myself the question whether it would be competent to the
Eepresentatives of the United States to say. " We will dispence with
all those questions 1, 2, 3, 4 and 5. We will ask the Tribunal straight
away to come to the question of Eegulations under Article VII".
Would it be within their competence to ask it. Would it be within
the competence of this Tribunal to yield to that request. I say emphatically no, because Article VI begins by saying: " In deciding the matters submitted to the Arbitrators, it is agreed that the following five
points shall be submitted to them in order that their award shall
embrace a distinct decision upon each of the said five points ". Therefore the decision of the Tribunal upon each of those five points cannot
be dispensed with, but what is the order of the decision. Could they
decide the question of Eegulations first and then proceed to the question of right? No, because Article VII provides this. I need not say
that any interpretation points to a contingency. " If the determination
of the foregoing questions as to the exclusive jurisdiction" you observe
| of the United States shall leave the subject in such position that the
concurrence of Great Britain is necessary to the establishment of
Eegulations for the proper protection and preservation of the fur-seal
in, or habitually resorting to the Behring sea". What is to follow?
" the Arbitrators shall then determine" that is to say if the contingency
happens, then, but not till then, "the Arbitrators shall determine
what concurrent Eegulations outside the jurisdictional limits of the
respective governments are necessary and over what waters such
Eegulations should extend".
I think therefore that I have so far made good my position—I ought
not to say that I think so, as it is not the habit of Counsel, with us at
least, to express personal opinion and I wish to guard myself and desire
to follow the course which is considered the proper course in these matters to submit these matters, and let them be tested by the strength of
the arguments advanced in support of them without bringing iu, and
I hope my learned friends will agree with me, the personality of Counsel as a warrant for or against. I am quite sure that there are many
propositions put forward in the argument which I have had the pleasure
of reading presented by the United States which 1 should be sorry to
be, and I think my friends would be sorry themselves to be committed
to as approving Lawyers.
The contingency is, therefore, that if it shall be found that the matter
stands in such a condition of things that there is not the exclusive 52
ARGUMENTS  ON  PRELIMINARY  MOTIONS.
right peculiarly appertaining to the United States, which is suggested
either under an inherent or under a derivative title, then the question
■ of Eegulations is to arise. I now think this the convenient moment
for supplementing the further answer to the question which one of the
Tribunal was good enough to address to me as to Question 5. The only
difference between Question 5 and the preceding Questions is this.
Both relate to questions of right; both are based upon allegations of
right on the part of the United States. The only difference is that
whereas the Questions 1,2,3 and 4 are based upon what I may call the
derivative title under Eussia and upon the allegation of acquiescence
of Great Britain, Question 5 asserts those rights of protection and of
property as inherent in the United States itself by virtue of its territory
and rights inherent in itself, exclusive of others. That is the only
difference. In other words, Question 5 points to rights of an exclusive
kind belonging to the United States by reason of its inherent powers
as territorial owners; Questions 1, 2, 3 and 4 are conversant with the
allegation of rights of the same kind but based upon a derivative title
from Eussia, a title which they allege to have been recognised by Great
Britain.
Now, I claim, therefore, to have made good, so far, the position with
which I set out.
Mr. Justice Harlan.—In order that I may get your idea exactly,
will you tell me, is it your contention that the arbitrators could not
determine the question named in the first two lines of Article VII as to
the exclusive jurisdiction of the United States without also determining
the question of the right of property in Question 5.
Sir Charles Eussell.—I think, Sir, I must ask you to be good
enough to repeat that question, and, if you could, in a little louder
voice?
Mr. Justice Harlan.—Is it your position, which I want to understand fully, that the arbitrators could not determine the question in the
forefront of Article VII as to the exclusive jurisdiction of the United
States without determining also the question of the right of property
named in Question 5?
Sir Charles Eussell.—No, I say that is involved. I have already
answered that in the answer that I have already given to you.
Mr. Justice Harlan.—Yes.
Sir Charles Eussell.—You will observe, Sir, that the thing is
clear. "If the determination of the foregoing questions," you will
observe, the argument is clear and I beg to point out that it would have
been very convenient, if this idea was passing through your mind or
through the mind of any member of the Tribunal, if my learned friends
themselves had been asked about it, because my learned friend (and
therein I think he was perfectly right) did not seek to draw any distinction such as is suggested in the question, nor indeed could he as I submit.
The first words of Article VII are. "If the determination of the foregoing questipns as to the exclusive jurisdiction of the United States."
It draws no distinction between Question 5, and Questions 1, 2, 3 and
4. It deals with the foregoing Questions. The foregoing Questions
are Questions 1,2,3,4 and 5.   That is my answer.
But now, Sir, I proceed.
The President.—I would rather that we broke off here if you are
going to begin a new part of your argument.
Sir Charles Eussell.—If you please.
[The Tribunal then adjourned for a short time.] ARGUMENTS  ON PRELIMINARY  MOTIONS 53
Sir Charles Eussell.—Sir, so far I have dealt only with the clear
and marked divisions of the questions and the clear and marked distinction as to the functions which this Tribunal is called upon to exercise in relation to that marked division of the question. So far I have
said nothing about the Commissioners. It will be apparent to the
Tribunal that the reference to the Commissioners appears in the Treaty
in an inverted order. That is to say that Article VII refers to the part,
so to speak, that their opponents are to play in the controversy when it
becomes a question of Eegulations before the Tribunal whereas it is in
Article IX that we find the constitution of the Commission itself; and
therefore, with the assent of the Tribunal, I would refer to Article IX
first as being, I think, in the more natural order.
Article IX provides that:
The High Contracting Parties have agreed to appoint two Commissioners on the
part of each Government to make the joint investigation and report contemplated in
the preceding Article VII and to include the terms of the said agreement in the
present Convention to the end that the joint and several reports and recommendations of the said Commissioners may be.
Not "shall be " but" may be ":—" In due form submitted to the Arbitrators, should the contingency therefor arise."
Thereupon it proceeds: "That each Government is to appoint two
Commissioners to investigate conjointly."   And further:
The four Commissioners shall, so far as they may he able to agree, make a joint
report to each of the two Governments, and they shall also Report either jointly or
severally to each Government, on any points upon which they may be unable to
Then follows the provision that they are not to be made public until
submitted to the Arbitrators, or until it shall appear that the contingency of their being used by the. Arbitrators cannot arise.
Now, first, it is clear from Article IX, and still more clear from Article VII that the functions of the Commissioners have relation, and relation solely, to the question of Eegulations. Now, is that in dispute?
I do not think it can be disputed. I do not understand my friend Mr.
Phelps to have suggested the contrary.
Mr. Carter.—I do not know that Sir Charles expects an answer to
that.
Sir Charles Eussell.—Merely yes or no. I anticipated rightly
that there was no contention about that.
Mr. Carter.—There is; we shall not agree to that.
Sir Charles Eussell.—I beg your pardon. I understood you to
agree. Now, I understand it to be suggested that the Commissioners
reports have relation to other matters than the matter of Eegulations.
That is what I understand.
Mr. Carter.—They relate to everything that they are pertinent for. .
Sir Charles Eussell.—Yes; but the point is what are they pertinent for? To that I get no answer. Either the functions of the Commissioners relate to Eegulations, or they do not. What is the position
that the States Counsel take. In certainly understood—I may have
been wrong, of course I should not seek to bind my friend Mr. Carter
by any statement that my friend Mr. Phelps made;—but my friend Mr.
Phelps in distinct terms said that this was the ordinary case in-which
one question being submitted one way, other questions might, become
unnecessary to consider at all: therefore, if the first five questions were
decided one way, the question of Eegulations might become wholly
immaterial. But I do not seek to rely upon any admission, qualified or
absolute.   I rely upon the Treaty itself.   What is the matter to which 54 ARGUMENTS  ON PRELIMINARY  MOTIONS.
these reports, to use my friend Mr. Carter's slightly dubious expression,
are pertinent? This at least is clear, that Article IX contemplates a
contingency in which their reports shall not be used. So far, I think,
we agree.
Then what is the function that the report is to play and in reference
to what questions?   For that we have to look to Article VII:
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 c	
Great Britain is
Then the Arbitrators shall determine that question.
"To aid them in that determination, a report of a Joint Commission,
to be appointed by the respective Governments shall be laid before
them "—the next phrase I will leave till a later period of my argument—"with such other evidence as either Government may submit."
It really passes my humble capacity to see what is to be said in
answer to the proposition which I respectfully affirm and submit, that
Articles VII and IX make that clear to demonstration which, up to this
moment, I did not think was even in controversy between us, that the
appointment of the Commissioners, to begin with, and the report of the
Commissioners consequent upon their appointment, was to serve one
purpose and one purpose only—to aid the arbitrators, should the contingency arise, in determining the regulations which they are to ordain.
I am a little surprised that there should be any doubt about that. I
cannot think there is any real doubt in the mind of any one of the
Tribunal whom I am now addressing. But of course I go further than
that—much further than that. I say that Article VII shows, and shows
for a very good reason, that when you come to the question of Eegulations you are following and observing an order quite distinct from that
which you are observing when you are dealing with the question of
right, because you have got what might be called self-contained pro- I
visions in Article VII, showing what the Tribunal may have regard to
in the consideration of the question of Eegulations. What is that?
They are to be aided by the Eeport of the Commissioners; and what
else? "And this report shall be laid before them with such other evidence as either Government may submit."
Eeally one has a difficulty in knowing what is the construction put
opposite to this. My friend, Mr. Phelps, says that the fallacy in our constructions depends upon the misconstruction which we place upon the
word "contingency" in Article IX; and I agree—for I wish to come to
close quarters upon the question—that if my friend's construction, of
that word "contingency" in Article IX is the correct one, he has
advanced a long way in the support of his argument; but equally by
contrary if his construction is the erroneous one it is fatal to his argument.
Now, the first thing to be observed is this: That the word "contingency" occurs twice in Article IX. It occurs in the first clause; it
occurs in the later clause. Is it to be believed that it occurs in those
two clauses in a different sense and that the same word used in the same
article has one meaning in one part of that Article and another meaning in another part? No, I do not think that will be urged; but I am
not asking for an answer. I do not think that will be urged; but what
is its meaning in the position in which it first appears?
I think, before I submit what the Tribunal lias of course already
anticipated, as to the meaning which we attribute to it, it is best to see
what my friend, Mr. Phelps, says about it. I am reading from the print
of the shorthand note of the argument yesterday evening, at page 47 ARGUMENTS  ON PRELIMINARY MOTIONS. 55
of the print, at the end of the second large clause, about the middle of
the page: "These reports, says the Treaty, shall not be made public
. they shall be submitted to the Arbitrators or it shall be considered".
That the contingency of their being used by the Arbitrators cannot
arise. It is said that that contingency refers to the contingency of the
decision.
"It is said" ought also to precede the next sentence.
"It is said the contingency is, whether the Arbitrators shall decide
in favor of or against the claims of right which the United States
Government have set up. We regard that as altogether erroneous. It
is the contingency of the Arbitration itself—the contingency of there
being any arbitration, not the contingency of the decision on the previous questions that the Arbitration shall reach, if it takes place".
That meaning is sufficiently obvious; but it is made clearer if the
Tribunal will refer to page 50, the last sentence but two at the bottom
of the page. You will observe, sir, the sentence beginning " Does it
refer ".
" Does it refer, as my learned friend will contend, to the contingency
of the Tribunal deciding against the United States oh the five questions
that are first propounded, or does it refer to the contingency of there
being any arbitration at all?"
That is it say, those who argue on behalf of the Government of the
Queen contend that it depends on the contingency of the decision in a
particular way of the five questions. "I", says Mr. Phelps, representing the United States, " contend that the contingency referred to is the
contingency of there being any arbitration at all". The issue is therefore clearly joined between us. My learned friend has stated with great
clearness, what he means is the construction. He adopts one construction; we adopt the other.
And finally, the last reference I shall trouble you with, Sir, is the last
paragraph but one on page 51, of the short hand reports where, there
is an interruption by one of the Tribunal putting a question. My friend
has concluded the sentence which ends, or begins a paragraph, I am
not sure which:
"If the Commissioners agreed, there would be no occasion for any
Arbitration."
This is still following out the idea that the contingency twice referred
to in Article IX referred to the contingency of there being no Arbitration at all.
"If the Commissioners agree," says Mr. Phelps, "there would be no
occasion for any arbitration".   Then Lord Hannen asks the question.
"Where is that embodied in the Treaty? Is it anywhere embodied in
the Treaty, that if the Commissioners agreed the Arbitration would
not go on?"
This is a very pertinent matter.   My learned friend's answer is.
"No, your Lordship, it is not."
Now, therefore, the question is the question that is decisive in this
matter, as it seems we both think.—What is the meaning of the word
"contingency" in Article IX?
Now, let me guard myself upon one matter of construction. This is
* a question of the construction of the Treaty; and although I do not
deny that on points where the Treaty is ambiguous it may be, and has
been so regarded by previous tribunals constituted like this, admissible
to refer to the negotiations which led up to the Treaty, in order to define
the subject matter of the Treaty, the subject-matter referred to the
tribunal, etc., I deny that where the Treaty itself is clear and unam- 56 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
biguous, that the reference to what Lord Salisbury may have thought
or said or written in his Cabinet, the question of the Treaty being a
matter of royal prerogative and therefore of executive action in Great
Britain, can be invoked in the construction of the Treaty; and equally
we know that by the Constitution of the United States the head of the
executive there cannot bind the country by a Treaty, but that it must
be a matter approved by the Senate or approved by a certain proportion of the Senate. Agreed; but we have no more to do with discussions in Senate or out of Senate, or as to what influenced this Senator
or that Senator in the view that he took in giving his vote for or against
the affirmation of the treaty than we have to do with the thoughts,
opinions, writings, sayings of Lord Salisbury discussing the matter with
his colleagues or conveying his views by diplomatic correspondence to
the representatives of the Crown in foreign countries.
Then is this clear? Is it a matter of doubt what this "contingency"
means?   Let us see the connection in which it is used:
"The Contracting Parties have agreed to appoint two Commissioners
to report on the part of each Government to make the joint investigation and to the end that the joint and several reports and recommendations—"
Can it be supposed that the recommendations had anything to do
with the question of decision and legal right?
"of said Commissioners may be in due form—"
What? I
" submitted to the Arbitrators, should the contingency therefor arise."
It is not submitted to a tribunal of arbitration ex post facto to be
constituted, but it is submitted to the Tribunal which by this Treaty
is constituted; and therefore to suggest that it was in the contemplation of the parties to this Treaty that the contingency referred to, as to
there being arbitration at all, cannot be supported with any show of
reason whatever.   The Tribunal is constituted by this Article.
But is there anything further to make that clear? If my friend is right '
in his contention, it follows that it was also contemplated that if the Commissioners should agree in their report—and that is what my learned
friend does not shrink from saying—that if the Commissioners should
agree in their report, there is to be no arbitration at all. There are
two answers to that. The first answer is that which you will already
have gathered from my argument on another point; namely: that the
Commissioners had nothing to do with the questions of right, and
that Article VI expressly stipulates that there shall be a distinct decision by the Arbitrators upon those five questions. That is answer
number one.
Answer number two, equally clear and equally conclusive: That if
the Commissioners had agreed in their report, and had agreed in their
recommendation, not only does this Treaty not make it obligatory upon
the Arbitrators to accept and act upon that report, but it in express
terms shows what was to be the relation of that report to their consideration, and to their decisions on the question of regulations. Article
VII has in express terms said that the report of the Commissioners
was not to rule them, was not to be a matter which they were to adopt
as a matter of course, without exercising their own judgment upon it,
but was a matter to aid them in their determination upon the question
of regulations.
Therefore my answers, as I submit, are clear and complete. It was
not the contingency of there being an arbitration at all, for the two
reasons I have given, which I hope I have made intelligible to the
Tribunal, and which I do not desire to repeat. ARGUMENTS  ON  PRELIMINARY  MOTIONS 57
The contingency was the contingency of the five questions being
decided in the fashion which should render the concurrence of Great
Britain necessary. That was the contingency contemplated in the first,
as it was the contingency contemplated in the last part of Article IX.
Indeed, the latter connection in which the word "contingency" is
used even more strongly makes the force of this contention which I am
submitting apparent, because the words are: "These reports shall not
be made public until they shall be submitted to the Arbitrators, or
(until again understood) it shall appear that the contingency of their
being used by the Arbitrators cannot arise." Not the contingency of
there being an arbitration, which arbitration by the preceding provisions is already constituted.
If it had not been for the introduction of certain other topics, I
should, Sir, have felt myself justified in sitting down; but I suppose
that I ought to refer to the other topics that have been dealt with by
my learned friend.
Let me, however before I leave these Articles, make some reference
to a very—if I may respectfully say so—acute comment thrown out by
one of the members of the Tribunal, a comment which I confess seems
to me, as far as I can judge, to be well founded in one particular. I
understood that comment to amount to this—I do not regard it as the
judgment even of the individual member of the Tribunal; but I understood it to mean; that the report contemplated by Articles VII and IX,
to be a report within the meaning of those Articles, ought to be a
report which might turn out to be a joint or a several report, but which
whether a joint or a several report, should be founded upon a joint investigation.   I understood that to be the suggestion.
Senator Morgan.—I intended to put that as an inquiry.
Sir Charles Eussell.—I am not at all sure that that is not perfectly
sound. I am not at all sure that when we come to examine these reports
of the Commissioners on both sides it will not be found that they will not
stand the test; and that applies equally to the reports of the Commissioners on the part of the United States and to the reports of the Commissioners representing or appointed by Great Britain.
Mr. Justice Harlan.—I suppose you are familiar with the report
now being talked of—the supplemental report?
Sir Charles Eussell.—Yes.
Mr. Justice Harlan.—Can you tell us—for we have not yet had it
before us officially—whether it is a separate report, based upon the
joint investigation that was made in 1891, or is it a report based upon
a subsequent independent investigation in which both Commissioners
participated?
Sir Charles Eussell.—As far as I can judge, partly on one, and
partly on the other. My learned friend said that he had not read, the
report; and indeed in the letter by which the United States Agent, my
friend Mr. Foster returned the report, it was stated that it was unread.
That being so, my learned friend Mr. Phelps said that somebody or
other who I do not know, has told him that it contains a number of
new depositions. All I can say is that it is not an accurate description
of it.
Lord Hannen.—Sir Charles, will you allow me to call your attention
to a passage in the seventh Article which I do not think you have commented upon? What construction and effect do you give to those last
words "with such other evidence as either Government may submit"?
Sir Charles Eussell.—I am coming to that, sir.
Lord Hannen.—I beg your pardon. 58 ARGUMENTS ON PRELIMINARY MOTIONS.
Sir Charles Eussell.—I had not at all forgotten that; and I am
now leading up to it, as you will see in a moment.
I was considering at the moment what one of the Tribunal said as to
the necessity of these reports being founded upon a joint investigation,
although they might be separate reports. I would like further to point
out that I do not myself think that it was intended—but I do not
myself see that these reports were intended to be invested, I do not
use the words in any way profanely, with any peculiar character of
sanctity, or that any very peculiarly great moral weight was necessarily to be given to them beyond what their intrinsic contents would
justify. I have pointed out they were to be mere aids to the Tribunal.
They were not to be the rule for the Tribunal. They were to assist the
judgment of the Tribunal, not to dictate what that judgment should
be; and here I immediately come to the point suggested by Lord
Hannen.
If that be so, it becomes entirely unimportant;—and this I say in
favor of the United States Commissioners' report as well as in support
of the Commissioners of Great Britain—it becomes comparatively
unimportant to inquire whether these reports were founded upon a
joint investigation or upon several investigations. They may have
failed to comply with the direction given in Article IX; but if they
supply means of information to enlighten the judgment of this Court
upon the subject of regulations, with which alone they are conversant,
then they come under the head of "any other evidence which either
Government may submit;" and I do not shrink from putting my proposition as high as this: that up to the last moment, when discussion is
taking place on the subject of regulations, if either party can put
before this Tribunal matter which may, and in the opinion of the Tribunal ought, to affect their judgment upon the character of those regulations, it is within the competence of either to do it. You will say,
according to the authority inherent in you, when the point has been
reached when you desire to retire to your chamber and consider the
question of regulations; but I say up to that moment—I put it as high
as that;—you ought to seek, and you certainly would be entitled to seek,
for any information which can be put before you by either the representatives of the United States or the representatives of Great Britain
which may help your judgment upon the question of regulations.
Now the answer which my learned friend makes and that upon which
he bases his argument, is upon the ground of what he has been pleased
to call manifest injustice. Indeed, I think he said " outrageous injustice ". I think he used both expressions. That does lead me, really to
ask the Tribunal to consider what is the constitution of their own body.
I have pointed out that it is undoubtedly clear that as regards certain
of these questions, which I have denominated and again, for brevity,
denominate questions of right, they are simply to decide as judges and
as jurists. I reaffirm that proposition; but when I come to the further
question of what rules of evidence are to guide them in the determination of those questions of right, I have only to point to the Case of the
United States, to the Appendices to the Case of the United States, to
the Counter Case of the United States, and to the Appendices to the
Counter Case of the United States, in order to show you and. make it
demonstrable that there is, in the view of those who represent that
great community, and that there is, according to the constitution of
this Tribunal, power to lay before this Tribunal what is not legal evidence in a court of justice. We have
>fd
t had the opp
opportuu
worthine
and yet
ity
88 "
of inquiring i
—to use my le
are—because
should, i
11(1
because the
astitution of this Tribunal contemplates
all that, quantum valeat. shall be regarded
by this Tribunal, this Tribunal weighing
and really in view of what I must be permitted to call the extravag:
expressions of my learned friend Mr Phelps as to the iniquity of i
putting something forward which they have had no opportunity
answering, I do not understand how my learned friend can reconcil
to his moral sense to put before this arbitration the mass of mat
which is to be found in the Counter Case, and which we have had
opportunity of answering.
Now let me make clear to the Arbitrators what I mean by thi
ought, to tell you how it is said this is justified. It is said that thi
by way of answer to the Case of Great Britain. Well of course t
is a mere facon de parler. None of it purports to be in answer
specific allegations in the British Case, and it only needs reference
any part of this book to see that if there be injustice of the kind wh
my learned friend insisted upon, it relates to all that portion of
United States Counter Case which I have separated from the rest i
which runs with the exception of a few pages from page 135 to the <
of the volume, what do I find there. I find there reports, amon
others—I am merely taking these as illustrations—of a Captain Hoo
made in August of 1892, September of 1892, one of a Captain Couli
of the 6th September 1892, one of a Mr. Evermann of the 28th Sept<
ber 1892, one of Mr. Stanley-Brown of the 16th December 1892, an
find depositions of a number of witnesses whom we never heard, wh
we have had no opportunity, I need not say of cross-examining or
inquiring into, extending from page 300 odd on to I think page 4
Therefore really this cry of injustice is as I conceive not in fact y
founded. But I want to go a little further. It is said by my frie
not only is this Supplementary Eeport offered in evidence, but il
offered in evidence under circumstances in which it is sought as a s
plementary Commissioners Eeport, to give it a special sanctity
character. I think the expression my friend used was " to put it o
higher plane ". Let me absolutely and at once disclaim any such s
gestion.   I claim no special value by the reason of the fact that th
value,
other weight than the intrinsic merit of the thing itself demands.
Thus I come back to my idea of a few moments ago, that we seek to 60 ARGUMENTS  ON PRELIMINARY  MOTIONS.
put this in evidence which under Article VII may be received by this
Tribunal under the title of " such other evidence as either Government
may submit," and let me say that I do not recede from, but stand by,
what I said, that up to the moment that you retire to consider the question of Eegulations, after you shall first have decided, as the Treaty
requires, the five questions of right, raised for your distinct decision,
it is within the competence of this Tribunal to receive any evidence
offered by either Government which has any valuable light upon and
in relation to the question.
The President.—Do you construe this as meaning legal evidence
or information?
Sir Charles Eussell.—Information merely.
The President.—Not legal evidence.
Sir Charles Eussell.—Not legal evidence.
The President.—The words are, " with such other evidence as either
Government may submit." You do not construe that as implying legal
evidence.
Sir Charles Eussell.—No, Sir.
Lord Hannen.—None of this was legal evidence, because it would
not be subject to cross-examination.
Sir Charles Eussell.—Not subject to cross-examination.
The President.—The construction goes rather far. One would like
to know how far it goes, and how far it does not go.
Sir Charles Russell.—Certainly, Sir. Let me make that position
clear because I think it lies at the very root of this matter. If this is
a matter which at all weighs upon the mind of the Tribunal, or of any
one member of the Tribunal, I would desire to enlarge upon it, and to
enlarge upon it simply by saying that there is no part of the evidence
submitted on one side or the other which is legal evidence. The United
States has no legal evidence.
Senator Morgan.—Why is it called " evidence" then?
Sir Charles Eussell.—Because it is evidence. It is called evidence because it is evidence.
Senator Morgan.—Without being legal.
Sir Charles Eussell.—Without being legal certainly.
The President.—Even for the legal points.
Sir Charles Eussell.—Even for the legal points. So far as the
legal points are concerned our position, and I must enlarge upon that
presently, is clear. We say, as regards the first four questions, namely
those relating to what I have called the derivative title, or the title
founded upon estoppel, that they involve no questions of law that are
really likely to cause, I think, any doubt or any difficulty, or I will venture to say, although I may be sanguine therein, any difference between
those who represent the United States, and those who represent Great
Britain.
Mr. Justice Harlan.—What questions are those?
Sir Charles Eussell.—The first four. They depend upon construction of public documents, and upon historical facts—those first four questions. As regards the 5th question, there I agree there is a difference.
We come there, undoubtedly to vexed questions, but in our submission
and in our judgment—and it is the position we have taken in the original Case, and the position that we adhere to—so far as they depend
upon any facts, those facts are not in dispute, and it is upon the questions of law applicable to facts that are not in dispute that the decision of
question 5 depends.   .
Senator Morgan.—Do you mean Municipal law, or International laiof ARGUMENTS ON PRELIMINARY  MOTIONS. 61
Sir Charles Eussell.—I mean both. It is anticipating; but as the
member of the Tribunal has mentioned that, I may perhaps avail myself
of the opportunity of pointing out that the title to property cam only have
its root of title in Municipal law.
Senator Morgan.—That is what I understand your Counter Case to
contend for.
Sir Charles Eussell.—Yes, it can only have its root of title in
Municipal law. It may be that if there is a dispute between the Municipal law of America and the Municipal law of Great Britain, International law may have a voice in saying which law—which Municipal law
is to rule. It may be that International law may have an important
voice in saying what are the sanctions which International law will recognize in relation to the rights of property within Municipal law.
It may be also that International law, where the Municipal laws conflict, will decide between them. The law of America, as you all know,
finds its source and derives its strength and its history from the Common law of England. The Municipal law of each country is the same;
and the root of title to property must depend upon Municipal law; and,
where those Municipal laws agree, the function and part that International laws play in that controversy is indeed a very little one. However, that is aside from the question which I am here discussing.
Mr. Justice Harlan.—Whether it depends on Municipal law or
International law, how far does the question of the right of property
depend upon the facts of seal life?
Sir Charles Eussell.—I have said that, in my judgment, so far as
the facts of seal life are material for the question of law as to property
in seals, they are not in dispute.
Mr. Justice Harlan.—When we come to determine the question
whether the United States has any right or property in these seals or
in the herd, do we consider and ought we to take into consideration the
facts in seal-life?
Sir Charles Eussell.—Certainly. So far as they are material, certainly.
The President.—I think we had better leave that for the moment
and argue on the points now before us.
Sir Charles Eussell.—I should say so. I have been led away
from my argument.
Mr. Justice Harlan.—The question which I put to Sir Charles Eussell was exactly in the line of the argument that he was making.
Sir Charles Eussell.—Quite so, Sir. I hope nobody thinks that
I complain of any question or interruption.
The President.—I think, Sir Charles Eussell, you rather swerved
from the original plan of your argument.
Sir Charles Eussell.—Well, Sir " swerving," rather implies "shying" from it.
The President.—No.
Sir Charles Eussell.—I have been a little induced to go out of
the line but I have not swerved from the proposition.
The President.—I do hot say that the fault was yours.
Mr. Justice Harlan.—Sir Charles Eussell was discussing the question of the right of property, and upon what it rested.
Sir Charles Eussell.—Do not for a moment, Sir, suppose that I
complain.   I do not.
Mr. Justice Harlan.—And the question I propounded to him was in
the exact line of his argument and I did not intend at all to swerve
him from that line of argument or to divert him.   It is exactly in the
-» 62 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
line of the question which he is discussing and which we are to consider.
Sir Charles Eussell.—Well, Sir, may I be excused from making
any comment on that; beyond saying that I do not at all complain
whether it was in the line of my argument or whether it was not in the
line of my argument.
Mr. Justice Harlan.—1 did not understand you as complaining.
Sir Charles Eussell.—No, not at all; but I was in this, sense taken
away from the point which I was upon,—the point of what is the meaning of the word " evidence". I did not anticipate that I should be
called upon to go into this question etymologically; but I think as it
has been adverted to, perhaps the readiest answer and the most practical answer is to state this broad proposition, that there is no part of
the so called evidence in the United States Case, in the Appendix to
the United States Case, in the United States Counter Case,—excepting
always documents of a public character,—there is in the whole mass of
it not one item that would be legal evidence in a Court of Justice over
which any of the distinguished judges who are here might preside if he
were either in America or in Great Britain. In other words, the volume
of material that has been put before the Court satisfies none of those
tests,—amongst others the great test of cross-examination,—which
according to the systems of judicature prevailing both in England and
in United States would make it receivable as strictly legal evidence if
tendered.   Now I hope I have conveyed my meaning.
Well then if that is so, I think the Tribunal will see—I think you,
Sir, cannot fail to see,—that when you are dealing with two countries
whose system of law and judicature is substantially the same, and
when they have by the preparation of their Case and their Counter
Case and their Appendices treated as matter of an evidenciary character to be put before this Tribunal matter which does not come up to the
test of legal evidence, the word " evidence" in the seventh Article does
not mean evidence which a Court of Law in either Country would
receive if strict objection were taken.
But now, Sir, I have not yet, I am afraid, concluded. If I am right,
the conclusion so far of course is this, that when the question of regulations comes on the tapis, when the point has been reached, at which
alone the Tribunal are competent to consider the question of regulations,
then they are entitled to avail themselves of any class of evidence within
the wide description I have given to it to aid them in that question of
regulations, and that evidence may be submitted on the part of either
Government. And in connection with the right of either government
up to the last moment to lay any matters before this Tribunal upon the
question of regulations, let me point out two things. First of all you
are aware, because it is part of the Treaty of Arbitration, and referred
to in the Treaty of Arbitration, of one of the matters which comes
before you ultimately for determination, namely, certain claims under
the modus vivendi of 1892. The modus vivendi of 1892 is I presume in
your minds.
The President.—Yes. We have a special Treaty for the modus
vivendi.
Sir Charles Eussell.—Quite right.
Senator Morgan.—It is hardly a special Treaty, it is made a part of
the Convention.
Sir Charles Eussell.—It is made a part of the Convention but it
is of a separate date and in a separate document. ARGUMENTS ON preliminary moth
Sir Charles Eussell.—I have no doubt, Sir, that you are right.
The President.—It is part of our law—I mean the law which institutes this Tribunal.
Sir Charles Eussell.—Quite. It is immaterial except to point
out that the Treaty of Arbitration is dated 29th February, 1892, and
. the Modus vivendi or convention is the 18th of April, 1892. I am not
challenging the correctness, of course, of what you say on the matter.
The point I am upon is different.
The President.—Both were ratified together.
Sir Charles Eussell.—So, Sir, it has just been stated.
The President.—The ratifications were exchanged together.
Sir Charles Eussell.—I point out that under Article IV, in order
to facilitate-proper enquiries on the part of Her Majesty's Government
with a view to the presentation of the case and arguments of that Government before the Arbitrators, it is agreed that suitable persons will
be permitted at any time, upon application, to visit or remain upon the
seal islands during the sealing season for that purpose. That is April
of 1892.
The President.—The 18th of April, 1892, is the date of the Treaty.
Sir Charles Eussell.—That I have stated, Sir,—the 18th of April,
1892. What I want to point out, Sir, is that all the complaint of my
friend here is that we were bound to set out in our original Case all that
we had to say—all that we had to say both on the questions of right,
and upon the questions of Eegulations. You recollect that. That is
my friend's argument. Very well; but here in April of 1892 is a provision that in order to enable the Government to present its case, facilities are to be given to visit the islands. That is April 1892. I need
not remind you—You know enough of the history of the case to know—
that the period as to which it is important, and the only important
period in order to judge of the characteristics, so far as they are material,
of seal life in the islands is the breeding season, June, July, August
and September, and that those are the four months within which are
embraced the fullest, the best, and the most complete opportunities for
the inspection of seal life. And yet, my friend's contention is that even
upon the question of regulations we were to be bound to deliver a Case
by the 3rd of September of 1892. When you recollect the remoteness
of Alaska to begin with, and the remoteness of Pribilof Islands from
Alaska, it is obvious that it was contemplated by these parties that
there should be a much extended opportunity, so far certainly as questions of regulation were concerned, of affording such information, and
such assistance to this Tribunal on the question of regulations as a
prolonged enquiry might give them.
Senator Morgan.—But did not the 60 days which you had a right to
claim amply provide for that?
Sir Charles Eussell.—No, I do not know that that would necessarily provide for it all, Sir, supposing they had extended it 30 days
more, which is the period.
Mr. Carter.—-60 days.
Sir Charles Eussell.—To begin with, Sir, the period which is contemplated for extension is 30 days additional, not 60.
Senator Morgan.—Not exceeding 60 days.
Sir Charles Eussell.—I say, Sir, that is an additional 30 days,
not 60 days which is contemplated, but that does not refer to the question of the original Case at all but to the Counter Case only.   My 64 ARGUMENTS on preliminary motions.
friend's contention is that all this ought to have been in the Original
Case. You follow, I think, that that is an answer to the objection. In
other words the case is to be delivered according to the terms by the
3rd of September, though we only got our authority to send to these
Islands under this Article in April of 1892. We get our authority
under the Convention in April of 1892.
Senator Morgan.—Was anyone sent to the Islands?
Sir Charles Eussell.—Oh yes, and his Eeport appears in the
Counter Case.
Senator Morgan.—He got there?
Sir Charles Eussell.—Oh yes—they were sent by both sides, and
both sides have submitted these Eeports in their Counter Case. Both
have done the same thing. My friends, as clearly as we have, have
departed from the idea, that the whole case was to be put out in the
original Case. They have chosen, of course, to say that a great deal in
their Counter Case which is new is by way of answer, but then you can
say that anything is by way of answer. It is strictly correct in sense
one—everything may be said to be by way of answer, but only in that
sense. But the question of Eegulations stands upon an entirely different footing, which I have endeavoured more than once to make clear,
and if I have not succeeded in making it clear up to this point, I should
despair of making it clear by any mere process of discussion.
But now, Sir I want to refer to another matter. My friend Mr. Phelps
says " Oh but there is another objection that I have to the admissibility
of this Supplementary Eeport"; and that objection he says is this: the
Article provides for a Eeport, if they can agree, to be made jointly—
if they cannot agree, for joint and several Eeports; and he says, having made one Eeport, which we have already furnished to them under
the circumstances which I will explain, they cease to be vested with
authority to make any other Eeport. They became fundi officio, my
friend would say. Well, Sir, I do not care to stop to consider even that
question. I myself do not see any reason why they may not make
several Eeports if they are so minded. I do not see anything in the
Treaty which compels them to exhaust their functions in one Eeport;
but let that pass. I base the claim to the admissibility of this document, not by reason of any sanctity attaching to it, because it comes
from the Commissioners,but as being evidence—"other evidence" within
the meaning of Article VII directed and intended to inform the minds
of this Tribunal upon the question of Eegulations when and if that
question shall arise.
Senator Morgan.—But, Sir Charles, it might still be evidence might
it not, and not have found its way into the record in due season according
to the Treaty.
Sir Charles Eussell.—Perfectly, that is my whole contention, Sir.
You have put, in one sentence, my whole contention, that, as regards the
questions of Regulations, there is, as contained in Article VII, provision
ichieh has not relation to the rest of the Case; that is to say, when the
Arbitrators come to exercise judgment, which is not judicial, tohich is not
juristical, then they are to seek such evidence as either Government can
place at their disposition—any matter which will have the tendency to affect
or help their judgment upon the question.
Senator Morgan.—I beg to say that I have been misunderstood if I
am supposed to have stated in any way that the power to ordain Regulations exists only upon a certain condition and to be exercised at a
certain time.
Sir Charles Eussell.—I am not sure that I follow you, Sir. ARGUMENTS  ON PRELIMINARY MOTIONS. 65
Senator Morgan.—I say that I have been misunderstood if I have
been supposed to insist that the power to ordain Eegulations exists
only upon certain conditions and at a certain time,—if Counsel will
allow me to say so—if this Tribunal should come out with an award
in which the Eegulations should be adopted or established, and the
• award should fail to find the existence of any of these conditions precedent, as they are alleged, I think that that award would be unassailable.
Sir Charles Eussell.—I am not prepared to say, Sir, that the
award requires the recital of any conditions.
Senator Morgan.—If it does not then it rests with the Tribunal to
say whether the conditions have occurred, and at what time they will
decide the matter.
Sir Charles Eussell.— Undoubtedly, always as far as the Treaty
does not in express terms state the way in which those questions are to
be dealt with.
Lord Hannen.—The Tribunal is required to find on those five
questions.
Sir Charles Eussell.—No doubt.
Senator Morgan.—Not as a condition precedent.
Sir Charles Eussell.—As a condition precedent.
Senator Morgan.—I insist the other way.
Sir Charles Eussell.—I am afraid now that I must make the
charge that 1 am being diverted from the point that I was making.
Senator Morgan.—I understood that Counsel quoted me as having
said the est-ablishment of the condition precedent was a necessary foundation of the jurisdiction and power of this Tribunal to make the Award on
the determination of Regulations.
Sir Charles Eussell.—My learned friend, Mr. Phelps, may have
so cited you, that I do not recollect, I certainly did not, and I do not
think my learned friend did either. I content myself with reading what
is plain English, and that plain English is, that the decision of the Arbitrators, a distinct decision, shall be given on each of the five questions.
Senator Morgan.—In their final Award"*.
Sir Charles Eussell.—I will come to the question of the final
Award, or interlocutory Award in a moment, that is not the point I am
upon,—they shall give a distinct decision on each of those five questions.
Senator Morgan.—But only one Award.
Sir Charles Eussell.—I will come to that in a moment, but that
they shall give a distinct decision, I, for the third time, repeat on those
five questions, and, it is only if the determination of those five questions shall leave the subject in a condition in which the concurrence of
Great Britain is necessary, then and then only, the Eegulations are
necessary, and, whether a particular member of this Tribunal thinks so
or not, that is my very respectful, clear and resolute submission.
Senator Morgan.—I was merely setting myself right about it, as
Counsel have alluded to the subject, I must say I have not intimated
the subject to be considered was anything less than the subject as to the
preservation of seal life, not in Behring sea, but in any waters to which
they might resort.
Sir Charles Eussell.—I think that latter observation is not germane to the matter in controversy now, but, as it has been adverted
to, when the proper time comes, I shall hope to demonstrate that the sole
area of dispute from the first moment the dispute arose down to the last
moment, was Behring sea, and Behring sea only. But I do not wish to
be led away at this moment. Q6 ARGUMENTS  ON PRELIMINARY  MOTIONS.
I must advert, still trying to bear in mind the point I was upon, to
the suggestion of my learned friend that the Commissioners after they
made their first Eeport were fundi officio. I have told the Tribunal
why I did not think that important, because I do not ask this Tribunal
to attach any peculiar character or importance, or to place this Supplemental Eeport upon any higher plane, than any other evidence that
might be offered to them for the question of Eegulations with which
alone it is conversant.
The President.—You mean that you put the Supplementary Eeport
upon the same plane as the first?
Sir Charles Eussell.—Well, I myself think it is not upon any very
high plane and I will tell you why.   Let me point this out.
The President.—As to Article IX?
Sir Charles Eussell.—Let me call your attention to this Article
IX: " The four Commissioners shall, so far as they may be able to agree,
make a joint Eeport to each of the two Governments, and they shall
also report either jointly or severally to each Government on any points
on which they may be unable to agree." Then I want to know, is a
peculiar sanctity or importance to be given to the Eeports in which
they differ, according to whether they come from the United States or
Great Britain? The very fact that they are, as the event has turned
out to be, and as one might well have supposed it would be, unable to
agree in the Eeport, and take different views, and report in different
language according to the stand point they take,—you cannot extend
to two sets of discordant and disagreeing Eeports,—you cannot to each
extend any peculiar sanctity or place them on any peculiar plane.
Each must stand on its merits, and the premises on which it is based
and the value the Tribunal thinks in the consideration of those Eeports
they respectively deserve,—no more and no less, and all this about
special sanctity, or peculiar character, or high plane, or low plane, may
be dismissed from this controversy as of no real moment whatevi|H|
The Treaty is contemplating Eeports as wide asunder as the poles, and
yet you are supposed to impart equal sanctity, and place each on an
equal plane free from criticism. All is to go before the Arbitrators, if
they disagree, the Arbitrators are to say to which they give effect, and
how far they are to give effect.
I still have not said what I want to say on the fundi officio point. It
is this. That my learned friends did not themselves conceive that their
Commissioners were fundi officio when they made their first Eeport, is
clear, because my learned friends will find that they have under a different date included in the documents which they have put in their
Case, three Eeports of different dates from their Commissioners. Very
well.
Now I pass from that which I consider a very small point.
Mr. Phelps.—One is the joint Eeport.
Sir Eichard "Webster.—No, they are separate Eeports.
Sir Charles Eussell.—If the joint Eeport is to be regarded there
are three. There is the joint Eeport which may be said to be a Eeport
in which the United States and British Commissioners agreed to differ,
and two separate Eeports by the United States Commissioners besides.
Now, it remains for me, before finally leaving this question of the
meaning of "other evidence" within Article VII to beg the consideration of the Tribunal to these two points. I have pointed out in the Convention of April 1892, facilities were given to the Eepresentatives of
Great Britain to elaborate by further enquiry and examination this
question of seal life so far as it had an important bearing either on the
question of property, or upon the question of Eegulations. as having a most material bearing on Article VII. You are aware that
the Convention of 1892 was the second Convention in the nature of a
modus vivendi. You are aware that under the first Convention, as
under the second, restrictions were submitted to by the United States
as to the extent of its slaughter of seals upon the Islands themselves,
and that the citizens or subjects of Great Britain submitted to restrictive regulations of a severe kind upon the question of pelagic sealing.
Is it to be said with any show of reason that if the result of that experiment, if the result of the action of these two Conventions in the nature
of temporary arrangements did throw any useful light upon the question of what Eegulations should be ordained by this Tribunal, that this
Tribunal is to be shut out upon that question of Eegulations from the
consideration of that which would have a clear and a direct bearing
upon what ought to be the exercise of their discretion in the matter of
Eegulations itself? I repeat it might be, I do not affirm that it was,
but that there might have been such evidence of the effect of the operations of either the modus vivendi of 1891 or of 1892 as might have thrown
the most valuable light on the character of the Eegulations which this
Tribunal should ordain; and I say again, and it is the last observation
that I shall make on that topic, that I do not the least recede from the
position which I submit is an invulnerable one, that on the question of
Eegulations this Tribunal has no right to shut out from its consideration, upon its merits, any evidence offered by either Government up to
the very moment that this Tribunal retires to consider the questions of
Eegulations.
Now I have one more duty to discharge before I sit down, and that
is to show that the positions which I have taken up in this argument
are the positions which the Government of the Queen took up in its
original Case; that it is the position which it maintained when the discussion arose in the interval between the original Case and the Counter
Case; and I do that not merely to prove the consistency of our positions,
but to show to this Tribunal that the United States fiepresentatives
had from the first to the last notice of the plan which we were in good
faith and with deliberation pursuing. I refer first in that connection
to the Case originally presented. You will recollect that that case was
presented on the 3rd of September, 1892, and at page 10 of that Case,
the 5th Question of property and protection, is referred to, and those
who prepared the Case proceed thus: 68 arguments on preliminary motions.
I do not stop to consider whether the advisers of the Queen were right,
or whether they were wrong in that position. Their view was that this
was a claim, and is a claim, novel and unprecedented, that the onus
lay upon those who put forward a claim so novel and unprecedented, to
justify it by facts and by arguments, and that the onus was not upon
Great Britain to disprove—the onus was on the United States affirmatively to prove.
Then it proceeds to the question of Eegulations, and it sets out Article VII, and then it goes on: "The terms of this Article make it necessary that the consideration of any proposed Eegulations should be
postponed until the decision of the Tribunal has been given on the
previous questions. Beyond, therefore, demonstrating that the concurrence of Great Britain is necessary to the establishment of any
Eegulations which have for their object the limitation or control of the
rights of British subjects in regard, to seal-fishing in non-territorial
waters, it is not proposed to discuss the question of the proposed Eegulations, or the nature of the evidence which will be submitted to the
Tribunal." That is at pages 10 and 11 of the original Case. On page
135, Chapter VIII, of the same Case, in relation to the question of property and protection, it is there stated: "The claim involved in this
question is not only new in the present discussion, but is entirely without
precedent. It is, moreover, in contradiction of the position assumed
by the United States in analogous cases on more than one occasion.
The claim appears to be in this instance made only in respect of seals,
but the principle involved in it might be extended on similar grounds to
other animals ferw naturw, such, for instance, as whales, walrus, salmon
and marine animals of many kinds." And then it proceeds to say
that these being admittedly animals ferw naturw, it was the duty of the
United States if they sought to make a claim to property in relation to
them to establish their grounds consistently with a Municipal law of
their own or any other country.
Then that subject is dismissed with this final note. "In the absence
of any indication as to the grounds upon which the United States base
so unprecedented a claim as that of a right to protection of or property
in animals ferw naturw upon the high seas, the further consideration of
this claim must of necessity be postponed; but it is maintained that,
according to the principles of International law, no property can exist
in animals ferw naturw when frequenting the high seas". And finally,
in relation to Eegulations, which is the matter which I have more '
immediately in hand, it proceeds—" Great Britain maintains, in the
light of the facts and arguments which have been adduced on the
points included in the 6th Article of the Treaty, that her concurrence
is necessary to the establishment of any Eegulations which limit or
control the rights of British subjects to exercise their right of the pursuit and capture of seals in the non-territorial waters of Behring sea.
The further consideration of any proposed Eegulations and of the evidence proper to be considered by the Tribunal in connection therewith
must of necessity be for the present postponed ". It is clear therefore,
what was the position (it cannot be doubted) bond fide taken up by the
representatives and advisers at that time of the Crown as to the
proper position in this question.
Then we come to the correspondence which took place between Mr.
Foster and the representatives of the Queen in Washington in September 1892, after the Case has been delivered. Mr. Phelps has already
referred to this matter, but I must follow it up. The pith of Mr. Foster's '
complaint is contained in the second paragraph of that letter, and I am IS ON preli
the Quee
n, Volume I, p
age 1. «I an
British C
the Tribunal
largely, a
the ques
or propei
iting the
ion submitted
Pribiloff Islan
it entirely, de
by the Treat
ds in Behring
spo
, Mr.
id if I c
not think he did; I thought he did, but he
which Mr. Foster thinks it right to make,
Commissioners, the Commissioners of Hei
made up their Eeport not according to the
act that the United
id with the United
uld be au answer to
led to agree." That
ihat the British Corn-
dishonourable thing,
.•ived it right to make
party that in taking its evidence-in-chief,
the possession of all the evidence on the other side, as also that in
making up the Eeport of its Commissioners it should first be provided
with that of their colleagues representing the other Government in
respect to those points upon which they ]
suggestion, of course, means what I havi
missioners were going to do a dishonest
that instead of making their Eeport as th
their Eeport, they were going to make a Keport winch was an answer
to the Eeport with which they had already been furnished by the
United States.
Now, I respectfully commend to this Tribunal the perusal of Lord
Eosebery's letter to Mr. Herbert in answer to this argument and complaint of Mr. Foster. It is to be found on page 4. Of course, it is not
for me to say, but I have listened with the attention it deserved to the
argument of my learned friend Mr. Phelps and I did not detect that
he had discovered any flaw in that argument of Lord Eosebery. Let
me call your attention to what he says. At the top of page 5 he says,
after drawing the distinction between the character of the questions.
" It will be noted that the seventh article of the Treaty refers only to
the Eeport of a Joint Commission, and it is by the ninth Article alone
provided that the joint and several reports and recommendations of
the Commissioners may be submitted to the Arbitrators, should the
which the Eeport or Eeports and further evidence are to be submitted
>Tr
istablishing proper Eeg
tin is necessary for the purpose of 70 ARGUMENTS ON PRELIMINARY  MOTIONS.
It will be noticed further, that the inquiries of the Commissioners
are confined by Articles VII and IX to the question of Eegulations,
and have no reference to the points raised by Article VI. It is clear
therefore that by the Treaty it was intended that the Eeport or Eeports
of the Commissioners should be produced, not as part of the Case upon
the questions stated in Article VI, but at a later stage and then only
in the contingency above referred to.
Then " with regard to question 5",—that is the property dr protection point.—" of Article VI the Government of Her Britannic Majesty,
believing that the alleged 'right of property or property interest'
depends upon questions of law, and not upon the habits of seals and
the incidents of seal life, have stated propositions of law which in
their opinion demonstrate that the claim of such right is not only
unprecedented, but untenable. These propositions will be found at
pages 135 to 140,153 to 157, and propositions 15,16 and 17 on page 160
of the Case of this Government. This being the view of the Government of Her Britannic Majesty, it would have been altogether inconsistent with it, and, indeed, as they conceive, illogical and improper, to
have introduced in to the British Case matter which in the opinion of
Her Majesty's Government can only be legitimately used when the
question of concurrent Eegulations is under consideration." He then
enlarges upon those views and proceeds—and this is the point to which
I wish to bring this discussion now; "These are the views of the Government of Her Britannic Majesty, and they must maintain their correctness. But the Government of the United States have expressed a
different view; they have taken the position that any facts relevant to
the consideration of concurrent Eegulations should have been included
in the Case on behalf of Her Britannic Majesty presented under
Article III, and that the absence of any statement of such facts in
that Case has placed the United States at a disadvantage. The Government of Her Britannic Majesty while dissenting from this view are
desirous in every way to facilitate the progress of the Arbitration and
are therefore willing to furnish at once to the Government of the United
States and to the Arbitrators the separate Eeport of the British Commissioners with its Appendices.
The Government of the United States are at liberty, so far as they
think fit, to treat these documents as part of the Case of the Government of Her Britannic Majesty.
He then deals, in dignified and I think most courteous language,
with the suggestion to which I have already referred, the injurious
suggestion, and he expresses regret that it should have been made.
He meets it by shortly stating that the Eeport and Appendices so far
from being made to meet the Eeport furnished with the Case of the
United States in the words in which they are now (that is October,
1892), presented to the United States, were printed on the 21st of June,
that is to say, three months before we saw or could have seen their
Commissioners' Eeport, and " laid before the Queen in pursuance of
Her Majesty's Commission".
Then comes Mr. Foster's answer; and I think my learned friend did
not quite realise what was the effect of Mr Foster's answer. We
regard it as practically an assent to the position taken up by Lord
Eosebery, an assent in this sense, that they were willing to take and
did take the Eeport of the British Commissioners as practically all
that we were going to offer on the incidents of seal life if and so far as
they had any relation to property. We do not recede from that. We
maintain the position still; that, so far as the determination of the ARGUMENTS  ON PRELIMINARY. MOTIONS. 71
question of property interest in individual seals, in so-called herds of
seals, or an industry carried on by the killing of seals goes, it stands
for judgment upon facts that are practically undisputed. The question
is, the principles of law that are applicable to those facts. In acknowledging this, Mr Foster says "If, as I believe and assume, this Eeport
contains substantially all the matter which Her Majesty's Government
will rely upon to support its contentions" not as to regulation •" in
respect to the nature and habits of fur seals and the modes of capturing them; I entertain a confident hope that all further difficulty
upon the questions discussed in this note may be avoided." I answer
to that, that Mr Foster may assume we do not seek to disturb his
assumption, that in the document then communicated as far as we
believe any of the facts in it are material upon the question of property
protection,—we have no desire to add to that store of information,
whether it is ample or whether it is deficient: but, on the question of
regulations, we have never receded from the position, and do not recede
from the position, we did take up in the original Case and are entitled
to take up, and which is based on our construction, which we submit
is incontestably the right construction, that that Article VII does, in
the matter of regulations, provide for the possibility and admissibility
of further evidence tendered by either Government.
He then concludes: "I deem it necessary, however, to say that the
Government of the United States will, should occasion arise, firmly
insist upon its interpretation of the Treaty, and that it reserves its
right to protest against and oppose the submission to a reception by
the Arbitrators of any matter which may be inserted in the British
Counter Case which may not be justified as relevant by way of reply
to the Case of the United States." Our position is this, as far as our
original Case was concerned. We do not seek to supplement it by any
incidents relating to seal life which have any bearing on questions of
property except in so far as the new matter introduced in the Counter
Case is there introduced in the terms of Mr. Foster's qualification as
an answer to the allegations and statements and evidence put forward
in the Case of the United States; but as to regulations I do not depart
from the position I had previously assumed.
Now we get to the next stage of this matter which I wish to follow
out so that there may be no dispute. The moment came for the delivery
of the Counter Case. What do we do? In the Counter Case they follow the same position consistently throughout. On page 3 of the
Counter Case there is this passage: "The subject of the regulations
(if any) which are necessary and the waters over which the regulations
should extend referred to in Article VII of the Treaty is considered in
PaTt II. For reasons more explicitly stated in correspondence which
will be found in the Appendix, the consideration of this point"—that
is regulations—"have been treated in this Counter Case"^-why?^-
" but only in deference to the wish expressed by the United States,
that arguments upon all the questions with which the Arbitrators may
have to deal should be placed before the Tribunal by means of the Case
and Counter Case. The Government of Her Britannic Majesty have
adduced these arguments under protest and without prejudice to their
contention, that the Arbitrators will not enter upon or consider the
question of the proposed Eegulations until they have adjudged upon
the five questions enumerated in Article VI, upon which they are by
the terms of the Treaty required to give a distinct decision, upon the
termination of which alone depends the question whether they shall
enter upon the subject of regulations.   Her Majesty's Government 72 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
reserve also their right to adduce further evidence on this subject,
should the nature of the argument contained in the Counter Case on
behalf of the United States render such a course necessary or expedient." They claimed that then, and I as representing the Government
now claim it as within the right provided for by the Article VII to aid
the Tribunal, together with the Eeport of the Commission—to aid them
with such other evidence as either Government" may upon the question
of the Eegulations "submit".
Again at page 166 D of the British Counter Case the question is
referred to and I think that that answers the question addressed to
us by one of your body as to when this position was taken up. I have
shown the position under the Original Case. I have shown the position
in the correspondence with Mr. Foster, and now the position in the
Counter Case: "Upon any discussion before the Tribunal upon the
subject of Eegulations, Her Majesty's Government will refer if necessary to the supplementary Eeport of the British Commissioners which
is now in course of preparation and will it is believed be presented to
Her Majesty's Government by the 31st of January 1893 " and it was so
presented and bears that date. The succeeding Chapters have been
prepared in order that the Arbitrators may be put in possession of the
consideration of the other facts material to the consideration of the
question of Eegulations and of the reply on behalf of Her Majesty's
Government to the argument and allegations of fact contained in the
case of the United States with reference to pelagic sealing and the
management of the Islands in the past.
Now there is but one further stage of this controversy or discussion
and it is the correspondence which my learned friend in solemn tones
referred to this morning. That is the note addressed by the late Mr.
Blaine when he had ceased to be Secretary of State and when Mr.
Foster had succeeded to that position.
I refer with some reluctance to these questions of dispute between
two ministers, to each of whom I desire to attribute equally good faith.
I think it is unfortunate that these discussions should arise. I think,
moreover, that it is unnecessary that they should arise. As I have
said before, if you have ambiguity in a Treaty or any other document
you may even refer to extrinsic facts, or you may even refer to documents which led up to. that Treaty or agreement, in order to clear up
the common ambiguity relating to subject matter and so forth, but in .
this case the parties have definitely, in English which is clear and
intelligible to those used to construe English, expressed the purposes to
which both Governments are committed; and I have therefore dealt,
as the main point and purpose of my argument, with the construction
of the Treaty itself as that which ought to guide the Tribunal. But
as my learned friend has felt himself justified in referring to this I am
bound to refer to the answer which was made by Sir Julian Pauncefote; I believe Mr. Blaine was very ill at this time. I think I am right
in saying that. It is addressed to Mr. Foster, and dated September
9th, 1892, and is at page 8 of the appendix to the British Counter Case.
I do not think it appears in the United States Case at all.
Mr. Phelps.—Mr. Blaine's does.
Sir Charles Eussell.—Yes, but not the correspondence as a whole.
Mr. Blaine writes "After an arbitration had been resolved upon between
the United States and British Governments, a special correspondence
between the Department of State and Lord Salisbury ensued, extending from early in July to the middle of November, 1891. The various
subjects which were to be discussed, and the points which were to be ARGUMENTS  ON PRELIMINARY MOTIONS. 73
decided, by the Arbitrators in the affair of the Behring sea were agreed
upon in this correspondence. A month later Sir Julian Pauncefote the
British Minister and myself arranged the correspondence, and reduced
the propositions and counter propositions to a Memorandum which was
signed by us on the 18th December. Subsequently, the questions which
had arisen between the two Governments concerning the jurisdictional
rights ", and so on " were expressed in the form of a Treaty concluded
at Washington on the 29th February 1892;"—I do not think it is necessary to read every word of this, because it is not material to the point;
but this is the important position.
" In all these steps, including the correspondence with Lord Salisbury,
the Memorandum concluded between Sir Julian and myself, and the
Treaty that was ultimately proclaimed on the 9th May, 1892, and which
was negotiated by Sir Julian and myself not one word was said or intimated respecting the question now raised by the British Government
as to"—I want to call your attention to this extraordinary language—
"as to a secondary submission of evidence after the first five points set
forth in Article VI had been decided by the Arbitrators. It was never
intimated that any other mode of proceeding should be than that which
is expressed in Articles III, IV—and V of the Treaty. I shall be surprised if Sir Julian Pauncefote shall differ in the slightest degree from
this recital of facts".
I will read what, Sir Julian Pauncefote said in a moment, but there
lurks in this (though not so obviously) as in the argument of Mr. Phelps
the suggestion that we are here contending that there shall be two separate awards. First two separate hearings and then two separate awards.
I do not say it would be outside the authority of the tribunal if they
thought right to deal with it in separate awards. I do not express an
opinion, nor is it necessary that I should one way or the other. But
what is necessary, is that there should be an expression of the determination of the five questions submitted in Article VI. The intimation,
it is quite enough, of the distinct decision of the Arbitrators on the
point before they can proceed to the next point in the question of regulations ; and as regards the question of regulations substantially on
both sides the matter is entirely, before the Tribunal. My learned
friends have said they have not read this Supplementary Eeport. I
think they would have been wiser if they had, we begged them to read
it without prejudice to their objection, but they have not apparently,
and the result is that Mr. Phelps gives it an inaccurate description. He
says .it embraces a number of new depositions. It does nothing of the
kind. It is a further argument on further consideration of the view
that the British Commissioners took upon the question of regulations,
nothing more.
Then, Sir, I have to read this answer of Mr. Blaine on this point.
The President.—Perhaps that would keep till to-morrow.
Sir Charles Eussell.—If you please, I should much prefer it.
The President.—Then, before we adjourn, I call the attention of
the'Agents of both Governments to the unsatisfactory character, I am
sorry to say, of the shorthand report which has been given us. It has
beeu a source of great inconvenience.
Sir Charles Eussell.—May I state what has been arranged, and
I think it will be found to work well. We, on the whole, thought that,
as the compositors who have set up the type for that print were not
accustomed to the English language, or certainly not much accustomed
to read it in manuscript, it was a very creditable production on the part
of the compositors of this great capital.   There are, undoubtedly, a 74 ARGUMENTS   ON  PRELIMINARY   MOTIONS.
number of inaccuracies, but it has been arranged, with the assistance
of your secretaries and the secretaries of the members of the Tribunal,
that there shall be a corrected print at the end of each week, that is to
say, that the prints for the week shall all be corrected, and there shall
be a reprint of the corrected copy.
The President.—Then these are to be considered as proofs?
Sir Charles Eussell.—These are to be considered as proofs for
temporary use.
The President.—That is a very good arrangement.
Adjourned till to-morrow at 11.30. FIFTH   DAY,  APRIL  6th,   1893,.
Sir Charles Eussell.—Sir, when the Tribunal adjourned yesterday evening I was calling attention to the letter of Mr. Blaine of the
8th November 1892 addressed to his successor in office as Secretary of
State, namely, Mr. Foster; and Mr. Blaine says that not one word was
said or intimated respecting the questions now raised by the British Government as to a secondary submission of evidence. The first question
that one asks one's self in relation to that statement is why anything
should have been said. The parties have entered into an Agreement
or Treaty which speaks for itself, which was to be judged as to its effect
by the language which was used in it. But it is important to observe
that Mr. Blaine in that letter abstains, as you would expect an honourable man to abstain, from suggesting that anything had taken place to
in any way convey to his mind that the British Government took any
different view at any time of the proper construction of the Treaty
than that which they had consistently observed in their original Case,
in the diplomatic correspondence, and in the mode in which they had
presented their case to this Tribunal, but I feel grateful to my learned
friend for calling attention to this correspondence, because unless I
misconceive its effect, so far from impairing, it materially strengthens
the position that I am now taking up. Because in this letter there
were enclosed two documents, and I would respectfully, if 1 may, ask
all the Members of the Tribunal to take before them the Appendix to
the British Counter Case, Volume I, for they will not follow, as I should
desire them to, the point I am now insisting upon unless they have that
document before them. This is not printed in the United States Case.
I hope the Tribunal will excuse my appealing to them and making
some insistance upon this point, but it is really in aid of the Tribunal.
I refer to the Appendix to the Counter Case of Her Majesty's Govtern-
mentj Volume I, page 9. On that page are set out the two documents
which are thus headed. "Memorandum of Agreement referred to in
Mr. Blaine's letter of November the 8th, 1892". And it will be seen
by the Tribunal that that consists of two separate documents, both
dated, though separately signed, the 18th of December, 1891. Let me
remind the Tribunal before I read it of the point which is the great
point made by my learned friend Mr. Phelps in his argument on the
construction of Articles VII and IX.—That the contingency referred
to in Article IX is the contingency of any Arbitration taking place at
all. We, on the other hand, say the contingency referred to in Article
IX is the contingency of the questions in Article VI being decided in
a particular fashion; in other words, being decided so as to render
necessary the concurrence of Great Britain to any Eegulations. Now,
bearing that point in mind, the contention, on my learned friend's
side,—what is the contingency referred to,—I say that these documents
demonstrate that the contingency was the contingency of the decision
of those questions in a particular manner.
75 I
76 arguments on preliminary motions.
Now, what is the first of them? "The following is the text of Articles for insertion in the Behring Sea Arbitration Agreement as settled
in the diplomatic correspondence between the Government of the
United States and the Government of Great Britain". Then follow
Questions 1, 2, 3, 4 and 5, as they appear in Article VI of the actual
Treaty which constitutes this Tribunal. Then we come to the 6th
clause of this Memorandum signed by Mr. Blaine, and Sir Julian
Pauncefote; and here it is.—"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 Eegulations".—I omit the words
which for this point are immaterial and which immediately follow, and
it goes on.—"The Arbitrators shall then determine"—need I dwell
upon those words?—shall in that event determine; shall thereupon
determine,—"what concurrent regulations outside the jurisdictional
limits of the respective Governments are necessary and over what
waters such regulations 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." The rest of this is immaterial to the point which I am now discussing. Eecollect my learned
friend's contention is that this ambiguity, would not have arisen, if it
had not been that two distinct agreements were subsequently conjoined
and made into one, and, as my learned friend implied, perhaps not
incorrectly, clumsily put together. But I have demonstrated from one
of these documents alone, and without reference to the other at all,
that the contingency which was in that one document contemplated,
was the event of the question of right (I use that expression for brevity)
being decided in one fashion; and then, in that event and in that event
alone, the determination, of the question of regulations came to the
front.
I of course may be taking a sanguine and a partisan view of this
case, but I do not desire to do so, and I confess my difficulty in understanding what answer can be made to that contention.
Now let us see what the next document is. You will observe that
the document which I have read and especially clause 6 of that document which I have read, corresponds with Article VII of the actual
Treaty. Where do we find Article IX or the germs if I may so call
them of Article IX in the Treaty.
We find that in the next document; the following is the text of the
Behring Sea Joint Commission agreement as settled in the diplomatic
correspondence between the Government of the United States and the
Government of Great Britain:—" Each Government shall appoint two
Commissioners to investigate, conjointly with the Commissioners of the
other Government, all the facts having relation to seal life in Behring
Sea and the measures necessary for its proper protection and preseva-
tion. The four Commissioners shall so far as they might be able to
agree, make a joint report to each of the two Governments and they
shall also report either jointly or severally to each Government on any
points upou which they may be able to agree. "These reports"—that
is to say, whether "joint" or "joint and several" "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 will
not arise."
Taking the two together is there any doubt what they mean. It
will be observed that Article IX is not textually in strict accordance ELIMINARY M0TI0N8.                      77
with the second of those docume
its, but it furnishes the substance,
which affects the point which I am
stop here, and not refer to the a
submitting.   Therefore if I were to
nswer which Sir Julian Pauncefote
letter 'of Mr. Blaine, with enclos
learned friend's point, it is an aid t
ing.   But what is Sir Julian Pann
fit to print the letter of Mr Blaine
ares accompanying it, serving my
o the argument which I am present-
cefote's answer; and here I have to
than observe in passing that he ha
I think ought to have been prin
ted, namely Sir Julian Pauncefote's
Mr. Foster.—May I say it won
written and received in time to be
Sir Charles Eussell.—I am v
Mr. Foster.—It bears date tw<
replies.
Sir Charles Eussell.—That
I am very glad to have that explai
Id have been printed if it had been
> months after the letter to which it
isly Mr. Blaine appeals to Sir Julian
thTanswe? to%ha?appell6 sh?uld°
appear. ' However, the answer that
Now what does Sir Julian Paun<
by showing why there was not an
that, because he says "Since my
arlier answer for the reason that he
from Mr. Foster to Mr. Herbert of
entially appealed to by Mr. Foster
the contention of the United Stati
mentioned in Article VII"—that .
ught to be Article IX by the way—
'^^^0S.mm^^SbM>
the inability of the Joint Commission
• • 1 a in at a loss to understand th
is reference to me, as throughout the
ISallf^s
plainly expressed in Articles VII a
to those articles Mr. Foster states
that of an inability of the member
SS¥£Sti^fHo^ei
nti^X^M^Fo^adds^tt
is believed that Sir Julian Paunce
Majesty's Government, will not di
■sent from this statement."   Here is
) says:—" I desire to record my entire 78 ARGUMENTS  ON PRELIMINARY MOTIONS.
It follows as a necessary consequence that if the Arbitrators should
determine that the concurrence of Great Britain is not necessary to the
establishment of regulations for the protection of seal life, the seal fishery would thenceforth be exclusively regulated by the municipal law of
the United States, and no "concurrent" regulations would be necessary. Therefore Article VII provides that if it shall be decided that
the concurrence of Great Britain in any such regulations is-necessary,
the Arbitrators shall then determine what those regulations shall be.
Article IX provides that the joint and several Eeports of the Commissioners may be submitted to the Arbitrators "should the contingency
therefor arise"; and further that the Commissioners shall make a Joint
Eeport "so far as they may be able to agree", and that their Eeports,
joint and several 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". And then in order that
I may spare the Tribunal the full reading of this document, because he
proceeds to justify that view, I would ask the Tribunal to allow me to
go down to about the middle of the page beginning "The contingency".
"The contingency of such evidence being used could not arise till after
the decision of the Arbitrators on the five special questions. It was
quite unnecessary, therefore, to discuss during the negotiations, and by
way of anticipation, the mode in which that evidence should be brought
before the Arbitrators. The contingency of that evidence being used
before the Arbitrators might never arise, and, if it did, the mode of its
presentation would be a matter of procedure for the Tribunal to settle.
Indeed, any discussion on that point would have been premature, as
anticipating a decision adverse to the United States on the five special
questions". And then he concludes by further references which I will
not trouble the Tribunal with.
Now I pass from that correspondence and giving equal credit to Mr.
Blaine for the very negative view that he expresses—the very negative
view—and claiming equal credit for the bona fides of the dissent which
Sir Julian Pauncefote has expressed, I recur to what I ventured to submit to this Tribunal yesterday, namely that, although it may be right
to refer, where the question is a question left in doubt upon the construction of the Treaty—in any serious doubt—to negotiations which
led up to it, and though that is certainly very frequently a matter or a
mode of construction, or an aid to construction, I should prefer to say
often and properly resorted to if the question arises on the construction
of the Treaty of Arbitration as to the question of jurisdiction, as to the
subject to be dealt with, as to the limits of the powers, and so forth, yet
I admit, when you have a Treaty which as I submit on the face of it is
intelligible and admits of no real serious doubt of construction, the
application of any reference to antecedent diplomatic correspondence is
at least a doubtful proceeding. You must construe the document upon
intelligible rules with reference to what the document itself has said.
I pass from that and I have to make a reference to another point even
more remote which my learned friend Mr. Phelps, thought proper to
make, or thought himself justified in making, still upon the point of
the contin gency referred to and in order to justify his view that the contingency referred to was the contingency of no Arbitration at all being
held, and it will be in the recollection of the Tribunal that on page 52 -
of the printed note of the day before yesterday's proceedings, my
learned friend Mr. Phelps, referred to Sir Julian Pauncefote's letter to
Mr. Blaine on the 29th April, 1890, which contemplated a scheme of
Eegulations, and a scheme of Eegulations only.   My learned friend said ARGUMENTS  ON PRELIMINARY  MOTIONS. 79
that that clearly contemplated that if the Commissioners who were to
be appointed to frame that scheme of Eegulations agreed in framing
that scheme of Eegulations, that that was to be binding. I perfectly
agree; but does my learned friend suggest (I did not understand him
to suggest) that that was the only matter that was in the view of the
Government at that time? Not at all. There was in the view of both
Governments at that time strongly, and always insisted upon by the
Government of Great Britain, that the questions of right must be settled,
that the question of damages to be paid by the United States if they
were wrong.
Senator Morgan.—Do you mean property right?
Sir Charles Eussell.—I do not say property right merely, but questions of right,—I say, Sir, questions of right. I do not limit it to one
question or another. I say questions of right should be settled, and at
that very time as my learned, friend must know because I presume he
is familiar with the negotiations that had been going on and that were
continued after the Government of Great Britain were insisting upon
their claim for compensation in respect of what they contended was the
wrong committed upon the ships of" their subjects by their, as they contended, wrongful seizure in Behring Sea. Throughout it cannot be
doubted that this has been the position taken up by the Government of
the Queen, a position from which I am not departing now and from
which the Government has never departed. They deny to-day, they have
always denied, each and every part of the rights claimed as rights by the
United States exclusive of others. They have always demanded compensation in respect of the seizures which they contend were illegal;
butthe questionof right settled, they have always professed, and they profess
today, their readiness to consider any fair question of Regulations, always
bearing in mind that that question of Regulations is to be approached upon
the assumption that outside its territory, that outside the additional limitations of water, boundary conceded by International Law, the United States
have different rights from the rights of the rest of the World frequenting
those waters.
Senator Morgan.—Approached by whom?—That that question must
be approached, in the way you indicated, by whom? By the Tribunal
or by the United States?
Sir Charles Eussell.—What I have been stating, if you have done
me the honour to follow me, Sir, is what the position of Her Majesty's
Government on this question was.
Senator Morgan.—I understand that.
Sir Charles Eussell.—That that question of Eegulations is to be
approached on the basis of no rights on the part of the United States
except such as belong to her by reason of her territory rights, as we
contend, well and accurately defined by International Law; and her
position, therefore, has always been that it is impossible to approach
this question of Eegulations till you have a priori determined the question, whether there is or is not any exclusive or special right on the part
of the United States. Once that question is got out of the way, then
the ground is clear for the establishment of Eegulations just, expedient,
convenient in the interest of all who are concerned in the question. I
was stating the position which I, representing the Government of the
Queen, take up; which position is consistent with the attitude that the
Government of the Queen has constantly maintained.
Senator Morgan.—J perfectly comprehended that point; but I did not
understand if Counsel insisted that the question was to be approached by
the United States or by the Tribunal in the manner indicated. 80 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
Sir Charles Eussell.—I contend respectfully, and I should not
have used language perhaps of so forcible a character to the Tribunal
itself; but, of course, my argument involves the contention that that
is the only mode in which the Tribunal can approach the question within
its powers under this Treaty. The United States are, of course, equally
bound if my construction of the Treaty is a sound one.
Now it must be obvious. I do not think my learned friends have
made any attempt to conceal it;—that the object of this motion is not
confined,—the object, the motive of this motion—to the question
whether this particular Supplementary Eeport is or is not to be admitted.—My learned friend Mr. Phelps's argument upon the question as I
need not remind you took a very wide range, he gave peculiar importance to the motion especially in the beginning of his Argument yesterday in which he made it apparent that this motion did involve, if not
directly; indirectly a question of very grave importance, as he quite
correctly styled it and which must some time or other be determined
by this Tribunal.
For my own part I thought the motion advanced by my learned friend
was premature.
I think so still. I think the time for his motion would have been
when we are approaching the question of Eegulations and that he
might have reserved until that time the point whether this was a matter which the Tribunal should or should not have dealt with and we
would have been quite willing to have withdrawn this Supplementary
Eeport altogether for the present from the Tribunal, and to have reserved
to a more legitimate occasion the question whether it was or was not
properly to be received. But now as the Tribunal has expended so
much time in the patient consideration of its reception probably it had
better be discussed to the end. I say that my learned friend gave this
very marked importance to it because he yesterday said this: "Two
theories have been propounded by the respective parties" (That is at
the bottom of page 55 of the Eeport) " upon the construction of this
Treaty, in respect to the method of procedure. As I have remarked, I
believe this has been the subject of some diplomatic proceedings to
which I shall ask the attention of the Tribunal, and the views of the
other side have been communicated to us in a letter which accompanied,
I believe, the notice that this Eeport would be offered so that we are
advised, and have been before advised, of the position that the Counsel
of Her Majesty's Government take upon the subject. Their theory is
this: That there are to be, in effect, two hearings," two Arbitrations,
two awards (I am stating what Mr. Phelps attributes to us) " first upon
the five questions that are first propounded in the Treaty, next in the
event that those questions should be decided in favour of the British
Government, a further hearing upon the subject of Eegulations, and
that on that hearing fresh evidence, other evidence not theretofore in
the case is to be admitted. That is their view. We deny altogether
that the Treaty contemplates any such thing as two hearings, or that
the case discloses any propriety for such a method of procedure, I do
not say necessity but any propriety". And then he proceeds to argue,
and this is really the real bone of contention between us,—that my
learned friend contended that all these questions,—" Eight" and " Eegulations "—should be dealt with together, mixed up I know not how,
that you shall determine " Eight" in view of arguments about "Eegulations", and "Eegulations" in view of arguments about "Eight", and
to these subjects which are in themselves m their very nature distinct,
marked by a clear dividing line, and a dividing line which as I ven- ARGUMENTS   ON  PRELIMINARY   MOTIONS.. 81
tured yesterday to point out marks also a division in the character of
the functions that this Tribunal has to perform, they.are according to
the contention of my learned friend to be mixed together and not as we
contend to be kept distinct.
Well now it is said that we claim two hearings, two awards, two
Arbitrations, and all the rest of it. Well I will not say that this is
nonsense, because that would not be respectful, but my friend cannot
suppose that we mean anything of the kind. We mean that this Arbitration, that this Tribunal, having heard the discussion of the questions
of right and the evidence, from whatever source it is to be derived
applicable to those questions of right, shall proceed to state their conclusion,—if that be their conclusion as to all those questions,—that
their determination of those five questions is such as in their opinion
to require the concurrence of Great Britain in Eegulations within the
meaning of Article VII, and, thereupon, my friends are to proceed to
justify their claim for Eegulations by such evidence as is relevant to
that topic, and we are to meet their case by such argument and by reference to such evidence as is relevant to the same topic. It does not
involve two awards; it does not involve two Arbitrations; it involves
the simple act of keeping distinct and separate things which are in their
nature distinct and separate. It involves no additional expenditure of
time, and, although I said yesterday, and I wish to retract nothing
that I said yesterday, that 1 thought this Tribunal would be reluctant
to close the door against any important fact that might even recently
have transpired which had an important bearing upon what ought to
be the judgment of the Tribunal in the exercise of its discretion on the
question of Eegulations, I did not thereby mean to hold out to this
Tribunal, or to suggest to this Tribunal, that we had any or the least
idea of offering such volume of evidence as my words might seem to
have suggested. Our case substantially is, as to Eegulations and as to
everything else, before this Court, with the exception of this Supplementary Eeport. We think it is irregularly before this Tribunal; and
we have only yielded to the irregularity in order that there might be
no ground for suggesting that there was a grievance on the part of the
United States; and it was in deference to the suggestion of the United
States itself, and contrary to the view which the advisers of the Government took that Lord Eosebery yielded to the objection of the United
States, and furnished to the representatives of the United States, to be
treated as part of our Case, the British Commissioners' Eeport. This
Eeport which we propose to put in evidence is supplementary to that.
And two questions, of course, arise in relation to if; and to those two
questions I should like to address one word, and one word only. I mean
the point thrown out by the President yesterday as to the word " evidence " appearing in Article VII.
But before I do that may I be allowed for one moment to recur again
to a point which I made yesterday. My learned friend Mr. Phelps
complained and made it a matter of grievance; and of course it is a
great thing to get hold of a grievance if you can. A grievance is almost
as good as a sound argument at times before some tribunals. My
learned friend wants to get hold of a grievance, and he says: We have
reason to complain also that even upon the question of property and
property rights, and protection in relation to property rights dealt with
under point 5 of article VI-why even on that point, says my learned
friend, even on that point the Government of the Queen really do not.
tell us what their case is at all. Now I think it is important that it
should be shown that there is really no foundation for this complaint.
B S, PT XI 6 82 ARGUMENTS  ON PRELIMINARY  MOTIONS.
I yesterday called attention to page 11 of the British Case (the bottom
of page 10 and the top of page 11), where the subject is briefly adverted
to;, but if the Tribunal will be good enough to turn to page 135, chapter
VIII, the Tribunal wifffm* that we have discussed this question of
property, so far as it was possible for us to do it in the then condition,
of things. For what was our position? Our position was and is, this:
the claim of property is unprecedented. This claim of property is novel.
It finds no warrant, as we contend, in law. You do not contend that
seals are animals ferw naturw. You do not contend that. You admit
that they are not—at least I think so. I know you do not contend that
they are: but at least you do not deny that they are animals ferw
naturw. Whether that will be denied or not, I really do not know, but
we did not conceive that it could be denied, and thereupon I want to
ask the Tribunal whether we were called upon, whether we could with
propriety be expected to do more than to point out as we have done in
chapter VIII the general principles which apply to property, and how
property could be acquired in animals of that class, and to point out
that according to our conception of those principles they had no relevance to the claim of the United States, and did not support their claim
of property in the fur seals. Was it to be expected that we were with
the necessarily imperfect information at our command at that time—to
a large extent imperfect—to know what were the conditions of seal life,
the incidents of seal life as to the going and the coming, the length of
residence on the islands, their migratory return to the ocean—were we
to set up hypothetically the incidents relating to that seal life which
we might expect might be relied upon by the United States, in order
to meet them?
I say that would have been illogical and more. I think it would have
been entirely improper. We state our general principles. We say you
do not come within those principles as far as we know; and when they
do advance the grounds, as they do at the later stage, when we see their
Case, and when we know the grounds upon which they put them, then
we meet them as fully as we can meet them in the Counter Case presented. And now, Sir, I have got, I am glad to say, very close to the
end of the argument with which I have had at this great length to
trouble you.
But 1 desire to say something upon the point of what is the meaning
of evidence in Article VII: " shall be laid before them with such other
evidence as either Government may submit". It will be observed by
the Tribunal that two questions arise in relation to this Supplementary
Eeport. One only can be dealt with by this motion, namely, whether
any evidence at all not in the Case and Counter Case can be submitted.
The second point whether, if any evidence can be admitted, as we suggest it can and ought, whether this particular Supplementary Eeport is
evidence, is, of course another question, and that you cannot judge (it
is obvious) until you see what it is; and therefore the sole question that
can be dealt with here is, whether any evidence touching regulations (I
hope the Tribunal understands that) touching regulations: conversant
with nothing else but regulations: directed and intended to be used for
no purpose except regulations: whether any evidence of that kind
can at all be submitted and can be and ought to be received. It therefore is clear that, for the purposes of the present motion, it is to be
assumed that the Supplementary Eeport is evidence within the meaning
of Article VII.
The question, therefore, is narrowed, so far as this motion is concerned,
to the question whether any evidence can be admitted which relates to
regulations, and which is not to be found in the Case or Counter Case. ARGUMENTS  ON PRELIMINARY MOTIONS. 83
But although that is so, I do wish to say a word upon what "evidence"
does mean in this Treaty. It will save discussion hereafter, and I am
happy to think that there are some parts of this discussion in which I
think I can reckon upon the support of my learned friends. I need not
point out that there are different meanings which may be given to the
word "evidence". There is no necessity for referring to any but two
for the purposes of this discussion, namely, evidence receivable according to legal rule and determined in a judicial proceeding—that is one
kind of evidence; and the other kind is any material which will throw
light upon or enable the Tribunal to arrive at a conclusion upon questions of fact, although it may not be evidence which comes up to the
standard of technical evidence in a judicial proceeding.
The distinction is made more manifest when I remind the Tribunal
of this, and there is no member of it that is not conscious of it, that
what is legal evidence varies in different countries; nay, it varies even
in parts of the Queen's Dominions; as for instance, with barely one
exception, viz; questions relating to questions of pedigree—in the English Courts of Justice, hearsay evidence, as it is called, is not admissible.
I, as a witness testifying in an English Court of Justice, would not be
able, in proof of a given fact, to say that A. B. had told me that the
fact was so. But that class of evidence is admissible upon other than
questions of pedigree, even according to the Scotch tribunals, and the
system of judicature which they administer. The Scotch system is, as
no doubt many of you, if not all, know, largely founded upon the
Eoman law, and the Eoman law, again, gave a very much wider interpretation of what was to be regarded, even in the judicial and technical sense, as evidence. So, again, France. The rules of evidence are
much wider as to the reception of evidence than those which prevail
either in England or in the United States. As far as the United States
is concerned we stand upon common ground. Their system of judicature is founded upon our system of judicature; their common law is our
common law; and I could indeed give no better illustration of the community of law, even upon matters of evidence, and could say nothing
more creditable and praiseworthy of the judicature of the United
States, and of the writings of its lawyers than to point out the fact that
in England one of our principal text books upon law of evidence,
known as "Taylor on Evidence", a book that my learned friends are,
no doubt, familiar with, is absolutely founded upon—in great part taken
from—a well known American work, by a well known author in the
United States.   I mean Mr. Greenleaf upon evidence.
We could not therefore have any better illustration that on this question of the technical meaning of evidence both countries are in accord,
namely that an English text-writer on the question of evidence bases
his work upon that of a United States author treating on the same
subject. Then what does " evidence " mean in the language of a Treaty
to which two nations are parties who profess substantially the same
system of law. Well I think I may cut this part of my argument short,
and I am sure that it will be with a sense of relief that you, Sir, will
hear that. You can have no better means of knowing in what sense
the word " evidence " was used in this Treaty, than by showing the way
in which each of the parties have acted upon it. That being so, I turn
to their original Case with its voluminous Appendices, and I make this
broad statement which I do not think will be denied, that with the
exception of some documents of a historical character, and public documents which would derive some sanction for their acceptance from their
public character, there is in no part of the Case, or the Appendices of 84
ARGUMENTS  ON PRELIMINARY  MOTIONS.
the United States, any thing that would be strictly receivable in evidence if tendered'in a court of law presided over by a judge clothed
with no more than the ordinary authority of a judge of one of the High
courts. They are Eeports: the result of inquiries, in large part of correspondence with persons who are answering certain questions upon
the incidents of seal life; what they think about this, and what they
think about that, conversations with third parties in which third parties say what some fourth person has told them. Many comments, no
doubt, may be addressed to the value of portions of that evidence, but
you will not hear from me, Sir, you will not hear from any one on my
side, any objection to the reception of that. We may ask you to discount this, or not to place implicit reliance upon that, but we will ask
you to deal with it as both sides and all sides have dealt with it, as being
a matter not bound to be brought within the technical rules of evidence
as considered in ordinary judicial proceedings and established courts
of judicature, but as meaning something much wider and something
much broader. Indeed, I might point out this as an illustration of what
I have said—the last illustration which I shall make. A number of
so-called depositions, some of them taken in Canada, and some of them
taken elsewhere, are included in the Case, and Counter Case or the
Appendices to the Case and Counter Case of the United States. Now
I need not say that even if the deposition, or oath which is involved in
the notion of a deposition, were even legally taken, that would not
make it evidence at all. It is a primary condition for the admission of
evidence in an ordinary court that a witness who deposes shall be submitted to cross-examination. That is necessarily involved in it. But
more than that. There is in Canada, as there is in England,—and, I do
not affirm it to be so, but I think, as there is also in the United States
of America—a statute directed against what is supposed to be the profanity involved in taking what are called extra-judicial oaths—in other
words, a statute which renders it improper and which forbids the taking of oaths except injudicial proceedings and within certain accepted
limitations; in the case of the United States depositions taken in Canada we find them taken and sworn to, absolutely against the law of that
country.
Well now, Sir, I really have said I think enough to show you that the
word "evidence" in this connection means not technical evidence
according to the rules of courts of judicature, but that this Tribunal
will look to all the information that is put before them even if it is only
. second, or third, hand,—using their own judgment, weighing the evidence, discounting it if need be, and giving it only the proper weight
which they think it really deserves.
And now, Sir, I think I have only one other matter to refer you to,
and that is the letter of Mr. Tupper iu answer to the communication from
Mr. Foster, the United States Agent, returning the Supplementary
Eeport. You will recollect, Sir, that when the Supplementary Eeport
was furnished to the United States Agent, it was also intimated to him
that it was intended to forward it to the Tribunal. Mr. Foster then
wrote,—I am not- making any complaint,—his letter of the 27th of
March, objecting to that being done; and Mr. Tupper, the Agent for Her
Majesty, replied upon the 27th March, and I want to read to you that
reply.—"The undersigned Agent of Her Britannic Majesty appointed
to attend the Tribunal of Arbitration convened under the provisions of
the Treaty concluded at Washington February 29th, 1892, has the
honour to ackowledge the receipt,"—and so on; 1 do not think I need
read the formal part,—" and in reply thereto desires to state that it is
1 ARGUMENTS   ON  PRELIMINARY   MOTIONS. 85
the view of Her Majesty's Government that the mode of procedure contemplated by the Treaty has not been accurately followed. While all
the material bearing on the whole subject matter in dispute, intended
to be used by either party was to be submitted to the other party, that
part of such material which bore only on the question of regulations,
and particularly the Eeport or Eeports joint or several of the Commissioners of the two countries, should have been, it is believed, kept distinct from that part which bore on the questions of right; and that the
latter,"—that is to say, as to right,—"should alone in the first instance
have been submitted to the Arbitrators, the former, namely that part
relating to regulations, only when the contingency therefor arose, or in
other words when the determination of the questions of exclusive right
had been arrived at".
It was upon this principle that the original Case of Great Britain was
framed, and this course would have been followed but for the objections
raised by the United States as stated in Mr. Foster's letter to Mr. Herbert of September 27th, 1892. In deference to those representations
and in order to facilitate the progress of the Arbitration, Her Majesty's
Government, while maintaining the justice of their contention, furnished
to the Government of the United States and to the Arbitrators, the
Separate Eeport of the British Commissioners and its Appendices,
reserving at the same time their rights, as stated in Lord Bosebery's
despatch to Mr. Herbert of October 13th, 1892. The Government of the
United States in presenting to the Arbitrators, with their original Case,
the separate Eeport of the United States Commissioners had, in the
opinion of Her Majesty's Government, departed from the mode of procedure contemplated 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 Supplementary Eeport of the British Commissioners which was referred to on page 166 D. of the British Counter
Case. At the proper time Her Majesty's Government will submit to the
Arbitrators that they are entitled to use this Supplementary Eeport,
and they are quite willing.—I call special attention to this—" that
copies should remain in the hands of the Eepresentatives of the United
States, without prejudice to any objection they may desire to raise.
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."
We were willing that they should without prejudice take this Eeport.
If they had taken it and read it perhaps we might not have had this
motion at all, but my learned friend preferred to have it returned, as
Mr. Foster says, unread, and then to rely upon the statement derived,
I know not whence, that it contains fresh depositions. It contains no
depositions—no depositions whatever; and I do think that if even now
my learned friends had looked at it, they would have probably not felt
bound to raise the question so far as this document is concerned. But
I am fully aware, as I have already made apparent, that that is not the
real question that is here involved—that is not the motive of this
motion—the mere rejection of this Supplementary Eeport. It is the
determination of that question of procedure to which I have adverted
as giving, in Mr. Phelps's view, and I agree with him, importance to this
motion.
I do not desire to occupy your time, Sir, longer; but I must be permitted in two sentences to sum up the short result of my argument.
First, it is clear that the Eeport or Eeports of the Commissioners are 86 ARGUMENTS  ON PRELIMINARY  MOTIONS.
nbt in all events to go before the Arbitrators, because in Article VII
they are to be laid before them only in the event of their having to
consider Eegulations: and they are to consider Eegulations, and to
have power to consider Eegulations, only if the determination 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 point 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 Arbitration 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 cannot be the contingency of any Arbitration at all, because that would involve the
assumption that if the Commissioners agreed as to the Eeport, that that
Eeport upon the matter of Eegulations was to be binding upon and to
take the place of a decision of this Tribunal. But Article VII in clear
and emphatic 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 Tribunal are entitled to take into their consideration the question of the
Eeport as bearing upon Eegulations—The first time at which they are
entitled to take into account anything bearing upon Eegulations. 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 consideration ; 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 Eeport 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 am holding out
to this Tribunal any prospect of a reopening of this question and of a
branching out in to new enquiries and into large fields of evidence. No;
as I have told you, so far as I know, so far as I believe, this Supplementary Eeport, so far as we know, is ended and is closed. If they
have anything to say when they see that supplemental Eeport, to answer
it, to explain it, to contradict it, we do not object 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 capable of answer or explanation, and act accordingly; and when my learned friend, in solemn and impressive tones,
speaks 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 July 1892
instructions addressed to a Capt. Hooper of the Eevenue 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 TS  ON  PREI
fth of Augu:
the whole of this Counter
rations that I have given w
lich we have had no opportu
Eeport, withthis important difference—that the Supplementary Eeport,
if I am permitted to say so much in description of it (I do not know
whether I am) is a supplementary report, not putting forward new
facts, but expressing on further information and further consideration,
the views of men who have had special opportunities of observing this
question of seal life, so far as it bears upon Eegulations. That is the
character and purport of the Supplementary Eeport. It is not a new
report like Capt. Hooper's, of new facts. It is comment, argument in
the light of further inquiry and further investigation.
Now, Sir, I sit down, gratefully recognizing the patience with which
this Tribunal has heard me. And before I sit down I wish to empha-
, size the point which alone gives grave importance to this question—
that we claim from this Tribunal a decision as to which there shall be
no doubt or hesitation; that the questions of right shall be determined
before the question of" Eegulations is approached; and we shall use
every effort which it is in our power legitimately to use to insure that
result.
Sir Eichard Webster.—I cannot add anything to Sir Charles'
argument..
The President.—We thank you for the perfect lucidity with which
you have argued your point.
. I would ask Mr. Phelps and Mr. Carter whether they have anything
to add in point of observation to the foregoing argument.
Mr. Carter.—Mr. President, before I begin what I have to say in
reply to the argument which has been addressed to you upon the other
side, there is perhaps one point upon which I ought to make an observation in order that my argument may be better understood and not
mi sapprehended.
The learned counsel when taking his seat in the course of his argument yesterday, made an observation pertaining to what I may perhaps
call the proprieties of forensic controversy in something Eke these
words: 88 ARGUMENTS on preliminary motions.
If his observations had stopped there I should not have thought it
worth while to say anything; but he continued, and perhaps this was
the purpose for which he introduced the observation:
I am quite sure that there are many propositions put forward in the argument
which I have had the pleasure of reading, presented by the United States, whioh I
should be sorry, and I think my learned friends themselves would be sorry to commit
themselves to as approving lawyers.
Of course I can say nothing as to the rule which learned counsel
may prescribe for themselves in addressing a judicial tribunal. The
intimation is that the opinions we express here and the arguments we
address to the Tribunal should not be regarded as our real opinions,
or as not necessarily so, but as simple suggestions which may be made,
and which are submitted to the Tribunal without any expression whatever as to whether counsel believe in them or not, for what they may be
worth. 1 cannot say that I think there would be any very high degree
of value in a rule of that sort; and I think I should be quite unable
to comply with it myself. I have a habit myself, whenever I feel
strongly upon any question and have decided convictions in respect to
it, to express myself accordingly. I have no other way of arguing it;
and I do not object to the Tribunal's believing, when I speak as if I
believed in the opinions expressed by me, that I really do believe them,
and this, too, notwithstanding any derogatory estimate which an opinion
of that sort might compel them to form concerning the soundness of
my views as a lawyer.
I say this in reference to our printed argument, so far as I have had
anything to do with it, and I say it in reference to anything that I have
expressed, or shall hereafter express, in oral argument. I might add
to this that I do not think the learned counsel himself very well follows
the rule which he has suggested. He has a habit sometimes of speaking as if he really believed what he said, and as if he expected others
to think he so believed. And I cannot help thinking that he has at
.times expressed himself with such force and earnestness as to indicate
that he really did mean what he said and intended the Tribunal and
ourselves to believe so. It would be very difficult for me to listen to
arguments of counsel except upon a rule of that sort.
I say this for the purpose of showing, not that counsel are not at
liberty to submit to judicial Tribunals opinions or arguments as to
which they may have some possible doubt, with a view of allowing the
Tribunal to weigh them; but I say it for the purpose of intimating that
I have no objection to having the Court suppose that I really entertain
the opinions which I appear to entertain and express myself as entertaining.
So much for that. Now let me.come to the real subject of this debate.
Tt has taken a very wide range indeed. I do not complain of the extent
of that range. A great many things have been said in it perhaps not
rigidly vital to the questions arising upon the particular motion which
has been submitted to the Tribunal; but still they have a bearing upon
it, and they are also things which at some time or other, in the course
of the discussions which will take place before the Tribunal, would be
likely to be said, nay, which would have to be said; and we may say in
regard to them, or some of them, at least, that they may as well be said
at the start, and the necessity of repeating them hereafter may thereby
be dispensed with, possibly.
But what is the nature of the proceeding which is now before the
Tribunal? What are we talking to? What was it that occasioned this
present discussion?   We can at least ascertain the point where we ARGUMENTS  ON PRELIMINARY
began, however wide the range of discussion m
. and see what that point was, and what the Tri
The question arose in t
The Tribunal assembled,
dences of the parties we
y. We came here on the 23
rd of March
^^ssasasss
ons and ev
I long prio
omitted a long time before,
we .supposed, provided b3
5 of evidence, or any thing i
r the Treat
n the natur
by which anything in the
of information, if you please, aside from evidence," or of "a lower
than evidence, could be laid before this Tribunal. We never ima
that there was to be any further opportunity for the submissi
evidence on the part of Her Majesty's Government. We the
indeed, that we had much reason to complain in relation to the
leges which had already been assumed by Her Majesty's Govern
in the matter of the introduction of evidence. We thought wi
much reason to complain; but in a certain sense that had passed,
did not suppose there would be any further occasion for renewin
complaints, or feeling that we were subjected to any disadvantag
On the 23rd of March we took another step. We began the argt
of the questions which are submitted to this Tribunal, and the
ment of all of them—the question of jurisdiction in Behring se
n of the pro
ndustry ests
perty
interest of the Unil
3d upon the Pribil
,ed States in
of Islands, tl
the seals and
concun
ent regulati
ons—i
ill the questions re
quired by tin
) Treaty to be
submitt
,ed to the T
-ibuna
1, and as to which
evidence ha
1 been taken.
We beg
an the argui
nenti
a reference to them
bysubmittii
ig our printed
SI
r it, that ce
dance
hould
with the provision
have supposed, if
8 of the Tret
we had an
s ripe for a
ity.   Wesup-
•gument, and
after ai
gument had
in point of fact been submitted, ther
e would be no
attempt to introduce any
further evidence, oi
anything in
the nature of
it.   Su
ih a thing
never
entered our mind
s; because, a
s we view it,
such a
;hing is scar
celye
onceivable.   We ha
d made our t
irgument, our
princip
al argument
.   Th
3 Treaty indeed pro
vided that it
the Tribunal
desired
or if the p
irties
desired, further or
il argument
might be had
in sup]
iort of the
writti
n argument.   Tha
; was a provision of the
The!
3RESIDENT.-
-The
-e is more than thai
in the prov
ision.   If you
willrea
d Article V
you i
vill see that if the
Arbitrators
lesire further
elucida
ion with r(
gard
to any point, they
may require
a written or
printed
Mr. C
Jarter.—t:
iatin<
leed, is true.
The!
^RESIDENT.-
—Or o
ral argument.   Th
are is a diffei
ence between
the prii
ited stateme
nt or
argument and the r
aere oral arg
ument.
Mr. (
on the
Jarter.—Y
Tribn
there was indeed a
nal itself, that if i
provision, lin
: desired tha
lited to action
t some point
that em
purpose
such desire (
5 to the Trib
ucida
unal.
Nothing of the so
re had been
rt took place
ation for that
.   The cause,
s the counse
1 was
ad in
concerned, must be
regarded as
Timent; and
nVTonTyhfa
condith
m for argum
jut, bi
it with the principa
argument hi
mng actually
been in
ade,   Thatv
•as its
condition. 90 ARGUMENTS  ON PRELIMINARY  MOTIONS.
While it is in that condition, we receive from the Agent of the British
Government a paper purporting to be a supplementary report of the
British Commissioners appointed under the terms of one of Articles of
the Treaty—with notice that it had been delivered to the members of
the Tribunal. To say that we were surprised would but faintly express
our emotions upon the receipt of a document of that sort. There was
but one course, in our view, to take in regard to it, and that was to
return it immediately to those who sent it and to return it, with the
statement that we objected to any paper being placed before the Tribunal
at a time and in a manner not allowed by the terms of the Treaty.
Where should we be if such a course were permitted? In the course
of an experience at the bar now not very short, I have had all that I
could, by any possibility, do to establish my side of a controversy
against the arguments of my adversaries. To oppose their arguments,
to overcome them, is all, certainly, that I could ever undertake to be
able to do. But if my adversaries, in addition to the ability to answer
my arguments by their arguments, could answer them also by the introduction of new evidence, the case would indeed be one for which I had
no resources at all. That was what I felt about it, and what my associates felt about it.
That such a thing could be done at all was inconceivable to us. The
way in which it was done was a matter which added to the amazement.
The Tribunal was not asked whether it would receive a paper of that
sort. We were not asked whether we had any objection to the introduction of a paper of that sort. It was assumed by the British Agent
that he had the right to put it before the Tribunal, whether we liked it
or did not like it.
Senator Morgan.—Before the separate Arbitrators, you mean ?
Mr. Carter. Before the separate Arbitrators. I confess I am unable
myself to distinguish between that act and another which I have never
seen practiced-, that after a controversy had been finally submitted to
a judicial tribunal, one side should submit to the judges further considerations in the nature of argument. It was not done secretly. I do not
complain of that. Oh no. We were apprised of it, and most distinctly
apprised of it; but what was asserted on the part of our adversaries
was that they had the right to do it. Well, if they had the right to do
it then, they had the right to do it the day after and the day after that;
and their right consequently had no measure or limitation except their
own pleasure.   That was the nature of the right which they assumed.
We immediately informed our adversaries by letter that we returned
the paper, that we protested against the submission of it by them to
the members of the Tribunal, and that we should make a motion to the
Tribunal that it be dismissed from attention and returned to the source
from which it was received. We received in answer to that a courteous
letter from our adversaries, apprising us of the ground of their action.
I will read that letter.
The President.—Perhaps Sir Charles will give Mr. Carter the letter
which he has just read to us.
Sir Charles Eussell.—Certainly.
Mr. Carter.—I read.
The undersigned, Agent of Her Britannic Majesty, has the honor to acknowledge
receipt of the Honorable John W. Poster's communication of this day's date, and in
reply thereto desires to state that it is the view of Her Britannic Majesty's Government that the mode of procedure contemplated by the Treaty has not been accurately
followed. While all the material bearing upon the whole subject-matter in dispute
intended to be used by either party was to be submitted to the other party, that
part of such material which bore only on the question of Regulations, and particularly the report or reports, joint or several, of the Commissioners of the two conn- ARGUMENTS  ON PRELIMINARY  MOTIONS. 91
tries, should have been, it is believed, kept distinct from that part which bore on the
questions of right, and that the latter should alone, in the first instance, have been
submitted to the Arbitrators; the former, namely, that part relating to Regulations,
only when the contingency therefor arose; or, in other words, when the determination of the questions of exclusive right had been arrived at.
And that is a statement, if I understand it, that, according to the
contemplation of the Treaty, whatever related to the subject of regulations was not to be submitted, either to the Tribunal or to the opposite
party, until a determination had been reached by the Tribunal upon
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 contingency had not yet occurred. The Tribunal has not as yet reached a
decision upon what are called the questions of right, or upon any of the
questions. It had not determined that the contingency had' arrived
• upon which the question of Eegulations should be considered; and
therefore, in accordance with the views of the counsel themselves, the
time 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, upon the question
of Eegulations.
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. Poster's letter to Mr. Herbert of September 27th 1892.
In deference to those representations, and in order to facilitate the progress of the
arbitration, Her Majesty's Government, while maintaining the justice of their contention, 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 October 13th 1892.
"Eeserving their right," that is, their right to submit a further report,
orfurther 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 jurisdiction. They said they reserved that right; but whatever right they
might or could have reserved, the contingency mentioned in that reservation, namely, the decision by this Tribunal of a certain character, had
not arrived, and therefore the submission of the document at the present time was not defended by that reference to the correspondence
between Lord Eosebery 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 report of the United States Commissioners had, in the
opinion of Her Majesty's Government, departed from the mode of procedure contemplated 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 Supplementary Report 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 understanding 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 submit to the Arbitrators that
copies should remain in the hands of the representatives of United States without
s referred to them for decision. 92 ARGUMENTS  ON PRELIMINARY  MOTIONS.
That is their statement. It will be observed that in this statement
they go back to the time of the original preparation of the Case, speak
of what they conceive to have been an erroneous construction of the
Treaty by the United States in the preparation of its Case, and speak
of their having conformed, in a manner, to that erroneous construction,
and to a certain extent, as a defence of their present action in submitting this paper at the present time to the Tribunal in the manner in
which it was submitted.
It was in this way that the question of the respective views of the
parties as to how the Cases and Counter Cases should be made up,
and what they should contain was brought into discussion before this
Tribunal, and it is this reference to the former action of the parties
which has enlarged the scope of the debate which might otherwise
have been confined within somewhat narrower limits.
As that wide range has been given to it, and as the methods which
have been pursued by the parties under the Treaty have been referred
to in great detail and made the subject of discussion, I must take the
liberty in these concluding observations, designed as a reply to the
argument on the part of Her Majesty's Government, to go back to that
original time and very briefly recount the circumstances under which
the Cases and the Counter Cases were put in. Before I do that, however, I desire to make one or two observations suggested by the remarks
which have been made by Sir Charles Eussell in reference to evidence.
The Tribunal which was created by the Treaty could not well be provided with the ordinary instrumentalities which are employed by courts
of justice for the purpose of ascertaining the truth upon disputed questions of fact. There could be no calling of witnesses and oral examinations and cross-examination of them; and, as that was not possible,
it was not, of course, possible to apply to the Case those rigid rules of
the law of evidence which are followed both in Great Britain and in
the United States in reference to the introduction of evidence. That,.
of course, was plain; and it was equally plain, or at all events it was
contemplated, that there would be differences of view upon questions
of fact as well as upon questions of law, and that some means therefore should be provided by which the parties should be enabled to
establish their views upon such disputed questions of fact. All that
the negotiators of the Treaty could do under the circumstances was to
provide the best mode in their power; and while they could not follow
the rules of law exactly, to follow them so far as they could, and at
least to observe those fundamental principles of equality between parties in the facilities which might be allowed to them for the purpose of
conducting their respective contentions. The examination and cross-
examination of witnesses was impossible; but was it impossible that
each party should be permitted to answer the proofs and the allegations which his adversary might rely upon? Certainly, not. That
result, although not susceptible of being accommodated in the exact
and perfect way in which it is provided for in municipal Tribunals was '
still susceptible of being accomplished in a substantial manner and in
a way sufficient to assure the administration of justice.
The Tribunal which was to consider the questions was to be a Tribunal composed of the most eminent jurists. It was properly to be presumed that they would be able to separate the material from the immaterial, to weigh the value which should be put upon this evidence and
that evidence, and that although they could not have the benefit in the
fullest and most complete extent of the ordinary rules which govern
the introduction of evidence, still that they would be sufficiently aided ARGUMENTS  ON PRELIMINARY  MOTIONS. 93
in that particular, if it were required that each party should submit
his Case, his proofs, and his evidence to his adversary to the end that
the adversary might criticise them, deny them, contradict them, meet
them, modify them, or reply to them. That is an opportunity inseparable from the administration of justice. No proceeding deserves the
name of being a judicial one unless each of the parties has an opportunity to know beforehand what the allegations of his adversary are,
and what the proofs are upon which he designs to support those allegations. That facilities should be afforded for that main and essential
thing is of course absolutely necessary. That is a point which no one—
I will not say no lawyer—but no intelligent man living under English
law, would think of ignoring or disregarding.
If we turn to the Treaty we find that provisions of that soft are
made.   Article III provides:
The printed Case of each of the two parties accompanied by the documents, the
official correspondence and other evidence on which each relies, shall be delivered
in duplicate to each of the Arbitrators, and to the Agent of the other party as soon
as may be after the appointment of the members of the Tribunal, but within a period
not exceeding four months from the date of the exchange of the ratifications of the
I suppose there is no question as to the entire lucidity of that clause.
It requires no interpretation. " The printed Case of each of the parties" was to be furnished to the other; and if we had no precedents to
guide us in respect to proceedings for international arbitration, lawyers—anybody—would easily understand what" printed Case" meant.
It would be the case upon which you rested your contention; your
allegations of fact; the evidences, the proofs by which you proposed to
support them; and. the conclusions of law which you drew from them.
Article IV provides:
Within three months after the delivery on both sides of the printed Case, either
party may, in like manner, deliver in duplicate to each of the said Arbitrators and
to the Agent of the other party, a Counter Case and additional documents, correspondence and evidence in reply to the Case, documents, correspondence and evidence
so presented by the other party
The Counter Case is provided for there. A method is thus provided
by which each party might;—not support his original Case—not that—
but by which he might reply to the Case of his adversary, contradict
his proofs, show them to be untrue, negative his allegations, contradict
his conclusions of law. That was the opportunity which was afforded
by the Counter Case.
The function of each of those documents, the office which it is to fill
in this Arbitration, is carefully prescribed in the Treaty; so carefully
and so clearly that no one could, by any possibility, misinterpret it.
I may be permitted to say something in relation to the mode followed
by the Government of the United States in the preparation of its Case;
and in order to do that, so that the learned Arbitrators may understand
it, I should allude very briefly to what the presumable nature of the
proofs was at the time when the parties were called npon to prepare
their original Cases. What were the questions? I shall not stop to
read them from the Treaty, but shall describe them generally.
In the first place, there were certain questions as to a jurisdictional
power or authority over Behring Sea asserted by the United States to
have been in some manner derived from Eussia, what my learned friend
Sir Charles Eussell, has well enough styled a derivative title or right.
In the next place, there was the question of the right of property in
the seal herds and in the industry established upon the Pribiloff Islands 94
ARGUMENTS  ON PRELIMINARY MOTIONS*
of maintaining those herds, which was asserted by the United States-
questions of property. Both of these were correctly described by Sir
Charles as questions of right.
In the next place, there was the question what regulations might be
necessary for the purpose of protecting the seals from extermination;
which question by the terms of the Treaty was not, in the order of
determination which the Arbitrators were to adopt, to be determined
until after they had made a determination of the questions relating to
exclusive jurisdiction; and not then, unless that determination was
such as would require the concurrence of Great Britain in regulations
for the purpose of preserving the seals. There was that order prescribed by the Treaty in respect to the consideration of the questions
by the Arbitrators.
Now, as to the first of these three questions—that relating to the
jurisdictional power or authority supposed to have been derived from
Eussia, there was not, it was to be presumed, any dispute whatever in
the evidence. It all rested upon documents supposed to be accessible
by both parties. I will not say that it was not possible that dispute
might arise upon some question of fact, but at least it was not very
probable; and in the course of diplomatic discussions respecting that
question, I do not think any serious dispute-had ever arisen in reference to any fact. The discussion was mainly in respect to the nature
and interpretation of documents known to the world, and in the possession of both parties.
With respect, however, to the question of property in the seals the
case was quite different. There, dispute, conflict, and a great deal of
it, was to be apprehended. The question as to whether the United
States had a property in the seals or not depended of course upon the
nature and the habits of that animal, as all questions of property in
animals depend upon the nature and habits of the animals; and what
the nature and habits of those animals were, in many particulars, it
was foreseen from the start might be the subject of very serious dispute
upon which much conflict of testimony would be anticipated. Where
were we to go for information in reference to the nature and habits of
seals, and the modes by which they were pursued and captured and
applied to the purposes of mankind? There was a great variety of
sources of evidence. There were the persons in charge of the Pribyloff Islands, the agents of the United States engaged in maintaining
that industry there, their statements founded upon personal knowledge, I
their reports, and all of these might be resorted to In addition to
that, there were the Indians along the coast, who followed these seals
in their migrations, and who had made for a long series of years, to a
certain limited extent, the pursuit of those seals a part of their occupation.   Their knowledge could be appealed to.
In the next place, there was a large body of mariners connected with
the vessels engaged in pelagic sealing, masters of the vessels, officers
of the vessels, seamen, hunters, all of them more or less familiar with
the modes in which pelagic sealing was conducted.
I need not say here that every one could see that the great body of
these witnesses belonged to a class whose statements would be very
likely to conflict with each other, sometimes because they are dishonest,
sometimes because theyare ignorant, sometimes because they are inexact; but, from a hundred reasons, we know that they are apt to conflict
with each other.
This whole subject, therefore, was encumbered with the possibility,
nay, the probability, that a great many of the allegations made by the ARGUMENTS  ON  PRELIMINARY  MOTIONS. 95
respective parties would be drawn into serious dispute; and the contentions of the several parties were to be supported by such evidence
as they couhLobtaiB.
The President.—Perhaps we might stop here and resume a little
later.
Mr. Carter.—Certainly, Sir.
(The Tribunal thereupon adjourned for a short time.)
Mr. Carter.—Mr. President, at the time when the Tribunal rose for
its recess, I was making some observations concerning the conditions
which this case presented at the time when it became necessary for the
parties to prepare their Cases. I had said that there were three principal questions involved; that upon the first of them, that relating to
the jurisdiction of the United States asserted to have been acquired
from Eussia, there was not likely to be any conflict upon the evidence;
that upon the next question, that of property, there was likely to be a
great deal of conflict; and I pointed out some of the grounds upon
which it seemed probable that conflict would arise, and the extent of it-
Then there was the third question, that of regulations. Of course, the
determination of the regulations would involve a consideration of the
subject matter to which it was designed that the regulations should be
applied, and that .was to the seal herd, and the taking of seals; and this
question of regulations, therefore, depended precisely, as the question
of property depended, upon the nature and habits of the seals, and the
modes by which they could be taken, and were usually taken, for the
purpose of being applied to the uses of commerce and the world.
Those two questions, the question of property, and the question of
regulations, would depend absolutely upon the same kind of evidence,
that is, evidence disclosing the nature and habits of the animals, and the
modes in which they were taken. The questions themselves undoubtedly were entirely distinct. One was a question purely of property
right; theother was a question what regulations were necessary in the
absence of a property right, and where the seals could not be protected
by the exercise of any rightful power, without the concurrence of other
Governments;—what regulations with the concurrence of other Governments were necessary to promote what was assumed to be a common
object, namely the preservation of the seals. The questions were
entirely different in their character, but, nevertheless, the evidence
upon which they depended was substantially the same.
Now, the Government of the United-States came to prepare its Case,
and the question arose how it should prepare it. Upon the first question it was plain enough that the evidence upon which it depended con
sisted of the documents relating to the history of the Eussian dominion
over Alaska, and to the various Treaties and diplomatic communications,
aud other documents which from time tc time had made their appear- .
ance in connection with that subject. As to the next question, that of a
property in the seals, it was necessary, of course, to place the facts upon
which we designed to support our contention before the Tribunal.—
But how place them? By witnesses? No, we could not call any
before the Tribunal.—What must we do? We must resort to the best
evidence which under the circumstances was obtainable. That is the
rule in all judicial Tribunals, where one species of evidence deemed the
best is not to be procured for any reason, you must resort to the next
best. The only thing, therefore, was to consider what was next the best.
There was a variety of sources of evidence, such as the opinions of
scientific gentlemen, facts well known in natural history, all derivable
from books, which might properly enough be appealed to, but theimme- 96 arguments on preliminary motions.
diate facts must be proved by the testimony of witnesses, and, as we
could not call them before the Tribunal, we must do the 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 Article III which I have already read and which relates to the printed Case.
"The printed Case of each of the two parties accompanied by the documents, 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 evidence in reply to the Case, documents and correspondence and evidence
so presented by the other party." Therefore it was plain enough 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 possible 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 proper
protection and preservation of the fur seal in, or habitually resorting
to the Behring Sea, the arbitrators shall then determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Eegulations 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 Eeport,
together with the other evidence referred to bearing on the question of
regulations should not be withheld until the 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
upon 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 Eeports
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." We saw, therefore, 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 upon 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 regulations until the Arbitrators should make a determination of that character it would follow necessarily that there was to be a double Arbitration, 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
Case and the Counter Case, and but one Case and one Couuter Case were
provided for. In the next place it was perfectly 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 ARGUMENTS  ON  PRELIMINARY  MOTIONS. 97
place it was provided there was to be one decision and only one decision;
and therefore it seemed to us quite inadmissible that the idea should be
entertained that there were to be two hearings involving two separate
submissions of evidence. I need not argue that notion further, for it is
now declared by my learned friend on the other side to be simply nonsense. So that it was very apparent to us, and we never had any doubt
about it, that all the evidence that we had bearing upon the controversy,
" "ion, or property, or regula-
o submit in support of our
or that was the only means
vidence except evidence in
ed faithfully in accordance
;e by which they designed
upon the question of juris-
lestion of regulations, was
Kily and fully submitted to
ae denial, of the other side,
idd. We had gathered together a
e to the nature and habits of the
) establish, as we supposed, that
to make them the property of the
idence tending to show that if the
e question of regulations, that no
e purpose of preserving the seals,
ic sealing. We exhausted all our
i to us for the purpose of putting
:o this Case, to the end that our
wer it, every fact that we designed
:ention in this controversy; and I
ipon the other side that there has
been any withholding by us "of the slightest circumstance from that
Case to which we have at any time resorted for the purpose of supporting any of our contentions. Those Cases were, I think, in the month
of September, in the first week in September, exchanged. We delivered to the Agent of the-British Government our Case, made up in the
manner in which I have described. We then received from them their
Case, and proceeded, of course, with interest to examine its contents.
What was our surprise to fiucl that in that Case of the British Government not one item of proof in relation to the nature and habits of the
seal, or the mode by which they were pursued, not an item of evidence
bearing on the question of property, not an item of evidence bearing on
the question of regulations. What could be the intention of this? Is
it possible, we asked ourselves, that Her Majesty's advisers have been
of the opinion that they could safely submit the interests of Her Majesty's Government to this Tribunal without any evidence at all upon
these subjects; or are they in some manner aware of our opinions
respecting the nature and habits of the seal, and believe that those
opinions are correct so that they cannot in any manner assail them?
What is the view which Her Majesty's Government entertain upon
these points ? We were wholly at a loss. The thought did occur to us,
only to be dismissed, at first at least, but still the thought did occur to
us, "is it possible that the advisers of.Her Majesty's Government have
deliberately conceived that they could withhold all evidence upon which
they designed to rely upon these questions until they have received our
Case and know what our position and our evidence is, and theu for the,
B s. pt xi 7
tions—all th
e evide
h we
des
contention-
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sub
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ted ii
ith€
pointed out
by the
Tre
aty
by v
rhicl
reply could
get into
the
ban
the
The Case
of the L
nite
d S
bates
was
with that vi
ew.   Th
ewl
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, or
placed in th
e Case,
md
air!
lun
the observa
ion,the
crit
n, th
There was a
bsolute
y oc
thii
ig wi
thhe
multitude o:
deposi
ions
in
refei
enc<
seals, all es
tablishii
Ig  0
r t€
g to
their nature
and ha
oits
3 sue;
United Stat
es.   We
hac
ga
Tribunal sh
ould coi
le t
0 CO
nside
r th
regulations
would b
e et
ect
vefc
rth
except absoi
ute pro
hi bit
ion
of p
ilagi
means of in
formati
311   t
len
aval
able
before the 1
rribunal
and
pu
tting
int
adversaries
night consi(
eri
tand
ans
to bring for
ward to
sus
ain
our
cont
have not as
yet hea
id i
bsu
ggesl
ed vj 98
ARGUMENTS  ON  PRI
r evidei
MINARY  MOTIONS.
first time, produce their evidence under the pretext that it is a reply to
ours, so that we shall have no opportunity to meet it ? Can that be possible " ? Why, no; we could not think that. Both sides were represented
by lawyers, and by lawyers who were bred in the same school of jurisdiction and procedure; and both sides equally knew that in that school of
jurisdiction and procedure nothing was more zealously regarded, nothing more zealously protected than perfect equality between the contending parties in respect to the use of the instrumentalities which a
court of justice employs in order to gain a knowledge of the truth—a
perfect equality.
Well, it was a very serious question for the advisers of the United
mm
States to detern
Should they go c
when the Countei
dence to which tl
sho
■ th
under it. *
associate p
counsels hs
sequence w
Arbitratior
view, woulc
3 circumstances,
then perchance,
snse mass of evi-
ly, and go before
lere had been no
that sort was so
could not stand
in?   My learned
and resort i
about the i
Semta
that our opi
nion wa
satisfy the (
>pinions
tion on that
could we do
?   Well
ment and 1
mmbly i
evidence as
it desigi
tentions; ii
t other \
at c
if force, beca
,use
we disagi
. wl
lich written
pay
>ers had I
s be
en to satisfy
teel
inical law
d hi
ave been son
lew!
lat difficul
of <
fcBi
i foi
ought, according to our
mid then, when we came
diction to determine the
d been made up, and ask
: Majesty's Government
le into its original Case.
before the Tribunal, assume that it had
regularity and propriety in which the C
it to strike out from the Counter Cas<
everything which in fairness ought to 1
That we could do.
Well, for the purpose of saving the Arbitration the United States
resolved upon a course of that character—a conciliatory method, and, if
it was not agreeable to all of us, I am bound to say that, so far as I am
concerned, I think it was a proper one—and they therefore, addressed
a diplomatic communication to the British Government calling its attention to the true interpretation of this Treaty, to the circumstance that
the Case of Her Majesty's Government had been made up in violation
of its plain terms, and to ask that the mistake should now be remedied "™^
ARGUMENTS  ON PRELIMINARY  MOTIONS.                       99
so far as possi
lie.   It co
medi
ed altogethei
\   The counsel
for Great Brita
in were al
eady in posse
and that knowl-
edge could not
be recalle
d.   Just look
ati
; for a momei
lt if you please.
I ought to call
the atten
ion of the le
arne
d Arbitrators
to the special
advantages wl
ich Great
Britain thus
gair
ed.   In the
irst place they
knew what oui
grounds
were before c
omm
itting themse
Ives.   We had
committed our
selves full
j and comple
ely
not only in re
spect to allega-
tion, but in res
at all.   In the
their witnesses
nature and ha
pect to ev
als and to t
yha
inec
the advanta
ses who had, in
relation to the
;dure upon the
Pribylof Islan
Is.   Offici
al Eeports in
8om
e instances c
ontained some-
thin g which m
ght be un
derstood to b
efor
the benefit o
: Great Britain,
and something
deal of a doci
for the be
,nefitoftheC
jharacter out
nite
d States.   Th
ere was a great
rty might pick
something whi
sh it supp
osed to be to
ivantage and
the other party
Well now, if
apartyws
is obliged toe
ecid
Bin the first ii
istance whether
he would make
arson his witn
ess c
r not, he won
Id be obliged to
say to himself
"I must
use this mac
as
my witness, h
ecanse I do not
know that my
adversar
y will use hi
m a
s his, and tl
erefore I must
decide now, an
d make hi
n my witness
nov
r.»   What ad
vantage did the
counsel for Gr
jat Britain
gain in that
part
icular.   Wiry
, thev were able
to look into the Case of
the United S
, and see the various reports
which had bee
n made pj
irts of the ev
iden
ce in that Ca
se, and if there
were anything
tending 1
o favour the
inte
rests of Gre<
it Britain, they
could get the
lenefit of
t without ma
kin£
r the persons
who made the
reports their \
Fitnesses—
-could treat
theii
own witness
es as being the
witnesses of th
e other pa
rty, and gain
all the advantage
s derivable from
that treatmen
fc—very d<
jcisive somet
mes
as the lean
led Arbitrators
will easily unci
erstand, it
i judicial controve
jsies.' That
advantage they
gained.
Another adv
antagethe
,y gained.   T
lere
were quite an
umber of points
which would pi
esumably be the subjec
sof
dispute, as to
which the depo-
sitions of witn<
jsses, pel a
gic sealers, in
labi
ants of the co
asts of the Beh-
ring sea and i
s vicinity
would be cal
ed.
How many \
ritnesses was it
necessary to <
all to est
ablish any p
artic
,ular position
?   The United
States in fram
ng their (
iged
to determine that question
with no lights
other thai
i conjecture,
md
say.   "We w
ill call so many
witnesses, and
We think that is sufficient
to establish th
by the numb
er of witnesses
adduced upon
determine befc
atter as to w
hich we cannot
in reference to
it."   The Unit
ed States
disadvantages.
But the conns
el for Grc
at Britain w<
ame to prepare
their Counter (
)ase and c
iuld then say
e United States
has introducec
rill introduce
a dozen more.
As to this othe
e United Sta
es ]
tas introduce
d so many wit-
nesses: we wil
e a dozen m
ore;'
and so on
hrough all the
disputed quest
it is another
very
important a
they gained.
•
•     advantage
that they were
able to m
eet tbe^testu
aony
of the Unite
d^itateTLfali
the ways in wl
ich adver
se testimony
may
be met—by c
mtradiction, by
qualification, L
ling it by the
iuction of otl
ler and adverse 100 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
testimony, and the United States could not do it at all. They could
impeach our witnesses. They could show that this witness was not to
be believed under oath; and that that one could not be believed under
oath. They could show by circumstances, which they might prove by
depositions, that a certain class of witnesses were subject to certain
objections not perceptible upon the face of the testimony—in a word,
in all the forms in which the testimony of an adverse party may be met
and overcome, Great Britain secured the opportunity to do it, and
deprived us of it. I am speaking now upon the assumption that when
she came to frame her Couuter Case she should incorporate into it a
large mass of evidence relating to the habits of seals and other testi-
. mony as to the seals. If she did not choose to do it, no matter; all right.
But the ability to do it was the advantage which the Agent of Great
Britain had gained.
And he gained it so that it could not be taken away from him.
Whatever might be done in the way of obtaining from Great Britain
evidence she had withheld, nothing could repair the disadvantage to
which we had already subjected ourselv
lothin
g could take away
from her the advantage which she had g
..   Sh
e had it securely in
Now under those circumstances the ce
mrse
wede
stermined upon was
the conciliatory one; to ask them at one
e for
the ei
ridence upon which
they designed to maintain their content
ions,
so thj
it we might have it
before the preparation of our Counter C
ase, {
md, ii
' they chose to offer
it to us, to accept it as a compliance witl
condi
tions of the Treaty,
although it came too late, and although
amei
mder the enormous
upon which I have dwelt.   Consequent!}
r  on'
the 21
th September 1892,
Mr. Foster thus addressed Mr. Herbert,
who1
svastl
len in charge of the
British Embassy in Washington: "Depi
irtnn
Silt of
State Washington,
September 27th 1892.   Sir, on the 6th ins
stant
,thed
ay after the receipt
by me of the printed Case of Her Majesi
tf'sG
roveri
lmeut, called for by
the provisions of the Arbitration Tree
ity o
f 189!
2; in a Conference
which I had the honor to hold with you
atth
eDer.
•artment of State, I
made known to you the painful impres
ision
whicl
i had been created
upon me by a hasty and cursory examin
ation
of th
at case, but I with
held any formal representation on the i
rabje-
ct unt
al I could have an
opportunity to lay the matter before the
Pres
ident.
His absence from
this Capital, and the attendant circumst
ances
s hav<
s made it necessary
for me to delay a communication to you t
illth
e pres
sent".   The learned
Arbitrators will remember that at this
time
Mr. 1
■ oster, the Agent of
now directed by the President to say that he has observed with surprise
and extreme regret that the British Case contains no evidence whatever
touching the principal facts in dispute, upon which the Tribunal of
Arbitration must in any event largely, and in one event entirely,
depend. No proof is presented upon the question submitted by the
Treaty concerning the right of property or property interest asserted
by the United States in the seals inhabiting the Piibiloff Islands in :
Behring sea, or upon the question, also submitted to the Tribunal of -
Arbitration, concerning the concurrent regulations which might be
necessary in a certain contingency specified in the Treaty. If it were
fairly to be inferred from this omission that no proofs on these important points are intended to be offered in behalf of Her Majesty's Government, no ground for criticism or objection by the Government of the
United States could arise, since it is within the exclusive province of ARGUMENTS  ON PRELIMINARY  MOTIONS. 101
its Agent in the printed Cas
this purpose; I wish to call 5
Has the United States any Eight, and, if so,
what Eight of Protection
l^^e^H^f^SS
utside the ordinary 3-mile
1 is not only new in the
gous cases on more than one occasion.   The e
instance, made only in respect of seals, but 1
might be extended on similar grounds to 0
lisS
close of this particular part of the Case of
" In the absence of any indication as to th
United States base so unprecedented a clain
tection of, or property in, animals ferw natur
further consideration of this claim must of n
it is maintained that, according to the princ
no property can exist in animals ferw nati
high seas."   Now then the position taken by
question of law. At the
Great Britain it is said:
i grounds upon which the
pies of International'law,
Great Britain by the form
he is a subject of property at all is a questic
of fact. Next, if the United States should h
or reasons upon which they claim that the
erty, she Great Britain will answer that clai
until that time.   That is to say, if the Ui
ment when the case is made.   If they unde
or two observations to make upon the face of that.   In the first place,
or notTs a questioning But it is a question of law which depends
-dei
was submitted to the Tribunal. If we had any evidence as to th
nature and habits on which we contended that the property in th
was in the United States, it was our business to submit that evidei 102 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
in our principal Case. We did so fully, completely, unreservedly. If
Great Britain had any evidence on which she claimed that seals were
not the subject of property, or not the property of the United States,
it was her duty to submit it in the same manner in her Case, fully,
unreservedly and completely.
She did not do it, nor did she submit an item of evidence upon that
point, but postponed the consideration of it in the manner in which I
have stated. Now, therefore, having called your Honors attention to
the excuse or apology, if excuse or apology it may justly be called, for .
withholding from the Case evidence upon that vital and important question, I will proceed with the reading of Secretary Foster's letter:—"If
it were fairly to be inferred from this omission that no proofs on these
important points are intended to be offered in behalf of Her Majesty's
Government, no ground for criticism or objection by the Government
of the United States could arise, since it is within the exclusive province of either party to determine what evidence it will submit in
respect to any part of the controversy, or to refrain from submitting
any evidence at all; but such inference as to the course contemplated
by the British Government does not seem consistent with certain
statements made by its Agent in the printed Case submitted by him".
And the Secretary then goes on to refer to the statements which I have
already read to the learned Arbitrators, and I will not repeat them:—
" it must be evident," the Secretary continues,—" to the Government of
Her Britannic Majesty that, by the provisions of the Treaty, the question whether the United States have any property interest in the seals
referred to and the question what concurrent regulations in the specified contingency may be necessary, are directly submitted to the Tribunal; that the Treaty assumes that each party will or may have allegations to make and evidence to proeluce upon both questions; that the
plain contemplation of the Treaty is that each party shall state in his
Case what his propositions of law are and the evidence which will be
relied upon to bring the case under them to the end that the other party
may have a fair opportunity of shewing in his Counter Case that such
evidence is untrue, or erroneous, or partial, or subject to qualification
or explanation, for which purpose alone the provision for a Counter
Case was framed. The British Agent and Counsel must well know
that the decision of the two questions above referred to must depend
upon the evidence produced concerning the nature and habits of the
fur-seal and the methods of capturing and killing which are consistent
with the preservation of the species; and that it is mainly upon these
points that-collision and contradiction upon matters of fact and differences in respect to matters of opinion are exhibited by the statements
of persons likely to be made witnesses; that such witnesses are in
many instances under the influence of prejudice and bias and, in some,
open to the suspicion of insincerity and untruthfulness; and that the
only way by which either party may protect itself against the consequences of falsehood or error is by having an opportunity to detect and
expose it.
"The President cannot conceal his astonishment that it should be
assumed that the British Government is at liberty to introduce a whole
body of testimony of this character for the first time in its Counter
Case andthus shut out the United States from an opportunity of detecting and exposing any errors which may be contained in it. The Government of the United States cannot fail to be aware from the correspondence that has hitherto taken place on this subject between the two
Governments as well as from full information derived from the repre- ARGUMENTS  ON PRELIMINARY MOTIONS. 103
sentatives and agents of Her Majesty's Government and the Canadian
Government in the course of the proceedings and discussions that have
already occurred, not only that it is claimed on the part of those Governments that material evidence exists to contradict the facts asserted
by the Government of the United States, but that a considerable part
of it has been already taken and prepared by the British Government,
as to the character, extent and weight of which, however, the Government of the United States is wholly uninformed. The propositions of
law and of fact upon which the United States will rely in the Arbitration are precisely stated in its Case now in the hands of Her Majesty's
Government, and need not be recapitulated here. In support of these
assertions of fact a large amount of evidence, and all the evidence the
Government of the United States will offer, except in rebuttal of that
which may be introduced on the other side has been prepared and is
printed in the United States Case and its Appendices." This letter,
which is too long to read in full, and to which I commend your special
attention concludes with this request: "But the President entertains
the greatest confidence that when the views herein expressed are
brought to the attention of Her Majesty's Government, it will hasten
to correct the errors which have been made by its representatives in
charge of its Case, and he is pleased to give the assurance in advance
that the Government of the United States will assent to any reasonable means that may be proposed to that end by Her Majesty's Government. It is to be noted, however, that if the date fixed in the Treaty
for the closing of the Counter Cases is to be observed, no time is to be
lost by the British Government in submitting such proposition as may
seem to it to be called for under the circumstances. It would not be possible to correct the injustice which the Government of the United States
conceives has already been done by the manner in which the British
Case has been made up. It was an advantage which it is conceived
was not intended to be afforded to either party, that, in taking its evidence in chief, it should have the benefit of the possession of all the
evidence on the other side as also that in making up the Eeport of its
Commissioners it should first be provided with that of their colleagues
representing the other Government in respect of those points upon
which they have failed to agree. But this disadvantage the United
States Government prefers to submit to, though quite aware of its
importance, rather than that the arbitration should be put in peril.
" I have felt it necessary to enter at some length upon an exposition
of the views of my Government upon this question, because of its great
gravity and of the serious consequences which might result from a failure of the two Governments to agree respecting it, and because of the
earnest desire of my Government to reach a mutually satisfactory settlement. I deem it proper, however, to add, in conclusion, that the Government of the United States has entire confidence in its ability to
maintain its position in the controversy submitted to the Tribunal of
Arbitration; but to this end it must be afforded the benefit of those
substantial safeguards against the introduction of error which the judicial systems of all nations so carefully secure and which were designed
to be secured by the provisions of the Treaty. In the absence of such
safeguards no party to a judicial proceeding can be confident of the
protection of his rights; indeed, a trial of a question of right, when one
party has no opportunity of meeting and answering the allegations
and evidence of the other, does not deserve the name of a judicial proceeding." I find in this passage which I have just read a matter which
my learned friend Sir Charles Eussell made the subject of observation 104 ARGUMENTS   ON  PRELIMINARY  MOTIONS.
yesterday. It was the intimation by Mr. Secretary Foster that the
Commissioners appointed on the part of Great Britain had waited, or
might wait, and, having obtained the Eeport of the Commissioners
appointed by the United States before they prepared their own, might
prepare their own with the advantage of a previous knowledge of what
the report of the United States Commissioners contained. Well, Sir
Charles made the observation that he thought,—he hoped and believed—
that Mr. Foster would be sorry that he had made that imputation, as he
called it; and he expressed the view that it was a most serious imputation upon Her Majesty's Commissioners,—the notion that they would
undertake to wait until after the Commissioners of the United States
had presented their views, and then present their own with the
advantage of a knowledge of the views of the United States Commis-
• sioners before them. In the opinion of my learned friend, such a line
of conduct as that would be in a high degree objectionable and inconsistent with honorable sentiment, and he therefore expressed the regret
that Mr. Foster had as he thought—although I do not think it is quite
apparent upon Mr. Foster's statement, made such an imputation as that.
I have to say that the imputation upon the character of the Commissioners of Great Britain, if made by anybody, has been made by my
learned friend, and not by Mr. Foster. If it be an objectionable thing
on the part of the Commissioners of Great Britain to make up a report
upon the subject committed to them, with a knowledge of what had
been reported by the Commissioners of the United States and at a time
when the Commissioners of the United States could not answer it—if
that be an objectionable proceeding inconsistent with sentiments of
honour—the Commissioners of Great Britain, allow me to say, have
done it. This very Supplementary Eeport is made up, is it not, with
full knowledge of what the Commissioners of the United States have
said and with all the advantages possessed by such full knowledge. It
may be said, indeed, that the United States Commissioners may now
if they choose, reply to it. No, they cannot. The Government of the
United States has already declared in the most solemn manner that
according to its views of the interpretation of the Treaty the submission
of documents for evidence of any character to this Tribunal expired
long ago. They knew upon the other side that we could not answer it
according to our view of the Treaty. Therefore if there is any imputation upon the conduct of the Commissioners of Great Britain, it is an
imputation not made by us, but by the other side.
Now this letter of Mr. Secretary Foster was a conciliatory one offering an opportunity to Great Britain to repair as far as possible—it
could not be wholly repaired—the disadvantage done to the United
States by the mode in which the Case was prepared. It was responded
to by Lord Eosebery on the 13th October, 1892. . He proceeds in that
answer to defend the manner in which the Case on the part of Great
Britain had been made up and to say that the omission of evidence in
relation to the nature and habit of seals was proper, that any introduction of evidence upon that point into the case would be improper, and
that the introduction of evidence upon those points in the United States
Case was also improper, as I understand him.
"The Government of Her Britannic Majesty" he says "can not admit
that there is any foundation for these complaints, which seem to be
based upon a construction of the Treaty which, in their belief and in
the opinion of their advisers, is erroneous. The scheme of that Treaty
provides that the five questions submitted in Article VI should be kept
distinct from, and~that the decision thereon should be prior to, the con- ARGUMENTS  ON PRELIMINARY MOTIONS. 105
sideration of any question of concurrent regulations, which consideration would only become necessary in the event of the five points being
decided unfavourably to the claim of the United States. The sixth
Article requires that a distinct decision shall be given on each of these
points, while the seventh Article provides that 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
proper protection and preservation of the fur-seal in, or habitually
resorting to, Behriug Sea, the Arbitrators shall then determine what
concurrent regulations are necessary, and that '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.' It will be noted that the
seventh Article of the Treaty refers only to the Eeport of a Joiut Commission, and it is by the ninth Article alone provided that the joiut and
several Eeports and recommendations of the Commissioners may be submitted to the Arbitrators,' should the contingency therefor arise.' The
event therefore on the happening of which the Eeport or Eeports and
further evidence are to be submitted is thus indicated by the Treaty;—
that event being the determination of the five points submitted in the
sixth Article unfavourably to the claim of the United States, and so that
the subject would be left in such a position that the concurrence of Great
Britain would be necessary for the purpose of establishing proper
regulations."
Now there is his position. His position is, that the. submission of
these reports, and the submission of any other evidence, bearing upon
the question of regulations is not to take place until the decision of the
Tribunal is made upon the first series of questions. So he declares
that the insertion of evidence by the United States bearing upon these
points was wholly improper. Well, what does it mean? It means that
the time to submit evidence to the Tribunal upon the question of regulations does not arrive until after a decision by the Arbitrators, and that
it arises then only in a certain contingency. What does that mean?
That means, does it not, that there are, possibly, two distinct decisions
to be made by the Tribunal. That is what it means. You must await
the decision of the Tribunal on the first five questions before you can
submit any evidence upon the question of regulations, and then if that
decision is in a certain way, then and then only, it is in order to submit
evidence upon the question of Eegulations. That is the position taken.
In other words, it is distinctly and squarely taking the position that
there are to be two hearings, two submissions of evidence, two decisions,
all of which my learned friend nowpronounces, and justly pronounces,—
I should not say it except I had his authority for it—to be nonsense,
Well, what does he say in conclusion? "The Government of Her Britannic Majesty therefore reserved, and in their opinion rightly reserved,
until the time contemplated by Articles VII and IX of the Treaty,
the consideration of the question of concurrent regulations, should
the contingency therefor arise, and Her Majesty's Government protest
against the introduction, at this stage, of facts touching seal life, which
they contend afford no support to the exclusive rights claimed by the
United States, which were the original cause, and formed the first
object of this Arbitration.
"With regard to the allegation that the United States will have no
means of contradicting, limiting, or qualifying the proof and evidence
adduced in the British Counter Case, the Government of the United 106
ARGUMENTS  ON  PRELIMINARY  MOTIONS.
States appear to have overlooked the provision of Article VII, by
which, with reference to the question of the concurrent regulations,
express permission is given to each Government to submit other evidence". That is to say, there is provided, accordingto this interpretation a subsequent time, after decision by the Arbitrators, in which each
Government may-submit further evidence, and that subsequent time
(the inference is, or the language is, I think in some parts-of this
paper)—that subsequent time is a matter of procedure to be regulated
by the Tribunal of Arbitration itself; and when it comes to decide the
first five questions in such a manner as to make the consideration of
regulations necessary, it will then determine the time, manner, and
method in which the subsequent evidence is to be given, and, in such
determination will, of course, afford full protection to each party as
against the other.
" These are the views," he goes on to say, " of the Government of
Her Britannic Majesty, and they must maintain their correctness. But
the Government of the United States have expressed a. different view.
They have taken the position that any facts relative to the consideration of concurrent regulations should have been included in the Case
on behalf of Her Britannic Majesty presented under Article III; and
that the absence of any statement of such facts places the United
States at a disadvantage. The Government of Her Britannic Majesty,
while dissenting from this view, are desirous in every way to facilitate
the progress of the Arbitration, and are, therefore, willing to furnish at
once to the Government of the United States and to the Arbitrators
the separate Eeport of the British Commissioners with its appendices.
The Government of the United States are at liberty, so far as they
think fit, to treat these documents as part of the Case of the Government of her Britannic Majesty".
Well, upon receiving that, it was thought on the part of the United
States that it possibly, probably, furnished a way out of the difficulty,—
a way not free from objection—no such way could have been found to get
out of this difficulty—but still a way which, under the circumstances,
ought to be accepted. If this Eeport of the British Commissioners
with its Appendices thus promised, really contained the substance of
all that Great Britain designed to rely upon in respect to matters of
seal life, why the United States would have an opportunity of meeting
it and of overcoming it if they could, in the Counter Case, and they
therefore were disposed to accept the offer thus made of this Eeport
with its Appendices as a reparation, so far as possible, of what they
conceived to be the injustice which had been done to themselves.
Senator Morgan.—But if you will allow me to enquire, Mr. Carter;
did that Agreement between the Agents of the Government, or between
the two Governments, operate to enlarge the jurisdiction and powers of
this Tribunal after the Case of Great Britain had been submitted into
the hands of the Arbitrators ?
Mr. Carter.—Well, that is a question, which, I do not say has not
occurred to us, but which we have never thought it worth while to fully
discuss, or come to any opinion about. I should hope for myself that
no question would be made about it by the Arbitrators. Under the
circumstances the United States Government in its capacity as a Government and through the ordinary measures of diplomatic intercourse
has consented to adopt this mode of repairing what it conceives to have
been an original error in the preparation of the Case. I believe it is
within the power of the Government of the United States to enter into
that agreement, and that it is binding upon this Tribunal of Arbitration.
That is my belief. ARGUMENTS  ON PRELIMINARY MOTIONS. 107
Senator Morgan.—Although it may alter the Treaty?
Mr. Carter.—I do not think it does alter the Treaty in substance.
It is in reference to the mode of procedure, and that is a subject as to
which some margin of liberty must be allowed to the respective Governments, and, in the opinion which we have entertained, it is effective
for the end. I hope it will be allowed to prove effective, and that no
question will be made to the contrary. Of course, I cannot determine
for any member of this Tribunal his views in relation to his duties.
Now, this Eeport with its appendices was, either at the time of the
sending of this letter, or very soon after, submitted to the Agent of the
United States.
Sir Eichard Webster.—With the letter.
Mr. Carter.—With the letter.
General Foster.—It accompanied the letter.
Mr. Carter.—It accompanied the letter; and Mr. Herbert, who had
charge of the diplomatic interests of Great Britain in Washington at
that time makes a report which is printed in the Appendix to the
British Case, which concerns his doings in the matter. On the 9th of
November, 1892, he addresses this letter to the Earl of Eosebery:—
"My Lord, With reference to my telegrams of today, I called at the
Department of State this morning at the request of Mr. Foster when
he handed me a note containing the reply of the United States Government to your Lordships despatch of the 13th ultimo in regard to
the Behring Sea Arbitration. After briefly recapitulating the princi-
• pal points of this communication, copy of which I have the honour to
inclose herewith, he stated that I might consider the difficulty which
had arisen between the two Governments as settled, but he wished at
the same time to make it clear to me that the United States Government had accepted the Eeport of the British Behring sea Commissioners as part of the original British Case, under the assumption that
it contained all the evidence on which Her Majesty's Government
intend to rely in regard to pelagic sealing and the habits of the fur-
seal, and that no fresh matter relating to these subjects would be
introduced into the British Couuter Case except in reply to the questions
raised in the United States Case."
Sir Charles Eussell.—That has been observed.
Mr. Carter.—What has been observed, Sir Charles?
Sir Charles Eussell.—Except in so far as matters are stated in
reply, the Eeport of the British Commissioners contains all the matters
upon which we rely in regard to pelagic sealing and the habits of the
fur-seal.
Mr. Carter.—That is your view?
Sir Charles Eussell.—Yes.
Mr. Carter.—Allow me to say that we entertain a very different
view on the subject, and that the action of Her Majesty's Government
is as far as possible from an observance of that understanding. Mr.
Herbert continues:—" Should they, however, have been mistaken in
this assumption, they intend to insist on their interpretation of the
Treaty before the Tribunal of Arbitration, and to oppose the submission to the Arbitrators of any matters which might be inserted in the
British Counter Case which, in the opinion of the United States,
should not be justified as relevant by way of reply to their Case.
I expressed my gratification at the settlement of the question, and
asked him whether the United States required an extension of time
offered by your Lordship for the preparation of their Counter Case."
To that statement by Mr. Secretary Foster Mr. Herbert made no 108 ARGUMENTS   ON  PRELIMINARY  MOTIONS.
response other than that of consent to be implied from making no
qualification of it. That the controversy was settled on the terms and
on the understanding that the Eeport of the Commissioners of Great
Britain with its Appendices contained all upon which the British Government intended to rely as to the nature, and habits of fur seals,
except so far as concerned matters which might be relevant by way of
reply to what was contained in the United States Case, and no diplomatic representation to the contrary has ever been received from that
written to the United States.
Now, Mr. Foster, notwithstanding this oral communication with him,
addressed a further note, which was delivered on that day, and which
was the subject of Mr. Herbert's observations just read,—it was that
of November 9th, 1892; and it controverted Lofd Eosebery's interpretation of the Treaty, and pointed out that there could not be two distinct hearings and two distinct decisions, and that all evidence of an
original character intended to support the contention in chief of the
respective parties should be presented in the original Case, and the
Counter Case be limited to evidence in reply. All that argument he
goes over in this reply, which is too long for me to read to the learned
Arbitrators; but some of its closing observations I will read.
"I entirely agree with the observation of Lord Eosebery, to the
effect that the right of property in fur seals depends upon questions
of law; but I conceive that the precise questions of law cannot be
known, and cannot, therefore, be determined, until the facts out of
which they arise are known; and I cannot concur with Lord Eosebery
in the view which appears to be entertained by him, that the facts
concerning the nature and habits of fur-seals, and the modes by which
their increase may be made subservient to the uses of man without
endangering the existence of the stock, are not pertinent to the claim
of the United States to a property interest. On the contrary, I regard
these facts as in the highest degree important. Having thus expressed
the views entertained by the Government of the United States upon
the argument of Lord Eosebery in support of his interpretation of the
Treaty, it remains for me to add that I am instructed by the President
to say that he appreciates the spirit of equity and liberality in which
Lord Eosebery, while insisting upon his own interpretation, practically,
to some extent at least, and I hope fully, yields to the Government of
the United States the benefit of its interpretation by furnishing to the
latter the separate Eeport of Her Majesty's Commissioners, with the
permission that the same be treated as part of the original Case on
the part of Great Britain. If, as I believe and assume, this Eeport
contains substantially all the matter which Her Majesty's Government
will rely upon to support its contentions in respect to the nature and
habits of fur-seals, and the modes of capturing them I entertain a
confident hope that all further difficulty upon the questions discussed
in this note may be avoided. I deem it necessary, however, to say
that the Government of the United States will, should occasion arise,
firmly insist upon its interpretation of the Treaty, and that it reserves
the right to protest against and oppose the submission to, and reception by the Arbitrators of any matter which may be inserted in the
British Counter Case which may not be justified as relevant byway of
reply to the case of the United States".
Well, that I submit to the learned Arbitrators seemed to place the
question in this condition. A great advantage as we claim had been
taken over the United States by Great Britain in the manner in which
the Case on the part of Great Britain had been made out.   That ad van' ARGUMENTS  ON PRELIMINARY  MO
tage she could not
United States wei
she intended to re
and habits of thes<
itsappeudiceswas
intended to rely ii]
way of reply, and
at it might be reduced if the
ill the evidence upon which
upor
id habits of seals o
ginal contention ai
would properl_
Britain.
Now I come to the reception of the Counter Case. In due time the
Counter Case on the part of Great Britain arrived and was examined
by us and what did we find? That it contained no new evidence in
addition to that furnished by the Eeport of the British Commissioners
iditsAppendic
Fai
id ;
I habits; it hae
idei
ost Wl1
iQdthe-datU
re and h
abitsof t
he fur seals.
Soi
ne of th
sse depositions
to us.   Othc
rs^erf
alCs
; bu
ise had t
t almost
een submitted
the whole of it
tention by G
SfcBri
ause it was p
the nature a
udh
tly germ
he fur seals.
Everythin
hing tei
ation to the
hew at what
tim
e and ha
bits of the fur
ome upon the
Islands, hoi
v long t
hey rema
con
-se of th
eir migration,
whether the
>ack or nc
t, or, whethe
len the i
emales go out
upon Behrii
g sea th
ey go out
ose
of food,
ind how often
whenthataq
festion^
hat ques
sss
s
he question of
nd over again
ang the views
re in no sense
its original case.   The
ma
epi,
British Counter
whose depositio
believed upon c
ed by the United States in
ailed, and
not to be
nts which
Th
this case had t
We could not do that iu respect t
but settled it upon the basis that no evidence othe 110
ARGUMENTS  ON PRELIMINARY  MOTIONS.
in the Eeport of the British Commissioners should be received. Well,
we felt injured when we found that a contrary course had been adopted.
My learned friend has spoken about an eagerness on our part to shew
a grievance. I admit we felt one. We felt one at each of these steps
which I have been describing. We could not feel otherwise; and I
submit it to the candor of every Gentleman upon this Tribunal
whether we were not justified in having that sentiment of grievance.
We did feel it. But what were we to do? There was only one course
left to us, and that was the one which we indicated in the correspondence we would take. And that was, that when the Tribunal met we
might move to strike out all matter which ought to have been inserted
in the original Case. We have not done that. Why have we not done
that? Well, there are several reasons for that. We could make an
overwhelming case-calling upon this Tribunal to reject that matter.
But what would be the consequence of that? One of two things.
Great Britain might withdraw from this Arbitration if she could. It
is a question if she could not even then. But, if she could not do that,
an appeal would of course be made to the Tribunal to allow the evidence which had been thus irregularly introduced to be in form presented. That would iuvolve a delay,—a postponement,—a very long
postponement for the purpose of enabling them to put themselves recti in
curia. Well, we cannot afford to delay. These poor seals are suffering,
or will suffer, when the modus vivendi terminates, and we are very desirous to obtain a decision of this Tribunal before the race shall be left
again to the mercy of pelagic sealing sealers? If the Tribunal should
strike out the matter and then require the Arbitration to proceed, the
representatives of Great Britain could not complain of such a decision.
The difficulty would be one they had brought upon themselves, and
without fault upon our part, and the consequences might be justly left
to fall upon them. But we know the indisposition of a Judicial Tribunal
desirous of administering justice in a controversy, to go to the final
determination of it when they feel it to be true, from whatever cause,
that all the materials to which they could properly look to ascertain the
truth are not before them.
No Tribunal intent upon the business of administering substantial
justice ever enters upon a task of that sort except reluctantly, and I feel
bound to say also that, so far as I am concerned, nothing is more disagreeable to me—I think it is so with every lawyer—to go into contention with a crippled adversary, no matter on what ground that adversary has been crippled. And, thinking that, after all, the truth in
reference to the nature and habits of the fur-seals was established on
the whole by such a weight of testimony that it could not be seriously
affected, and that the most important interests would not be imperilled,
we concluded to waive our objections to this testimony thus wrongfully
introduced, and to let it stand in the Counter Case for what it was worth,
subject however to that sort of comment which we are entitled to make
in reference to it whenever upon the main argument the question arises
as to the confidence and weight to which it ig entitled.
There was one particular, however, in which we felt bound to make
a motion, and we did make it, and that was to dismiss from the attention of the Tribunal so much of the matter contained in the Counter
Case of Her Majesty's Government as related to new claims for damages as to which no mention was made in the original Case. That
motion was made, and was brought on by us at the same time with the
one which I am now arguing; but, at the suggestion and under the
direction of the President, the hearing of it was deferred. Now, tha
just accoui
has determined 1
that subject by s
that determina
bearing upon i
Tribunal.   Tha
taken by Lord Eosel
two awards, althougl
(That is the Eosebery and Foster correspondence.—)
For reasons more explicitly stated in correspondence which will be found in the
the Tribunal by means of the Case and Counter Case.
That is not a correct representation of any wish ever expressed by
the United States, or of any views expressed by the United States.
The views expressed by the United States were that all original evidence
upon the question of regulations should go into the Case, and not into
the Counter Case.
Lord Eosebery continues: "The Governmentof Her BritannicMajesty
have adduced these arguments under protest, without prejudice to their
The Tribunal will observe that the learned counsel for Great Britain
bery correspondence, that it is not regular or legitimate, or permissible, 112 ARGUMENTS   ON  PRELIMINARY  MOTIONS.
to submit the evidence upon the subject of regulations fo the Tribunal
until after the decision upon the points mentioned in regard to the
exclusive jurisdiction over Behring sea.   That is their position still.
My learned friend, iu the course of his argument yesterday, I think,
in speaking of the course which Her Majesty's Agent had pursued in
the matter, said: "Why, we did it in good faith; we elid all of this in
good faith. You don't deny that, do you? We told you about it";
And he read this extract from their Counter Case, apprising us of their
interpretation: (Mr. Carter read the passage).
Sir Eichard Webster.—We also mention it at page 166 D in the
Counter Case.
Mr. Carter.—Would you like me to read anything there?
Sir Eichard Webstek.—No; I merely meant that there is a distinct reference to this particular document.
Mr. Carter.—Do I charge bad faith in this matter? I have undertaken to avoid it. Do I really believe that Her Majesty's Agent and
his advisers when they came to prepare the Case of Great Britain in
this important controversy, said to themselves in effect: "We will
teach these If ankee lawyers a trick worth knowing in regard to the
manner in which the Case may be made up, whereby we can get the
opportunity of answering their allegations and evidence and deprive
them of the opportunity of answering ours." Do I believe that these
gentlemen concocted any such scheme as that? No; I don't believe it.
1 would not believe it. No consideration would induce me to believe it.
I do not think it. I cannot help saying that I think they have acted
under an erroneous impression as to the interpretation of the Treaty;
and I cannot think that they gave to the interpretation of the Treaty
that study which its importance demands.
But the question of good faith or bael faith is wholly unimportant
as far as the results are concerned. ' The advantage in either case, they
got. It does not diminish the magnitude of the advantage which they
derive from the course which they took that they did not contrive for
it. The advantage which they gained is as great, whatever view may
be taken of that matter.
So also they say: "Why, we told you that we did it." Of course it
was not necessary for them to tell us they had done it, when we looked
into their Case and saw it did not contain a single word in reference
to the nature and habits of the fur-seal, and contemplateel the possibility that they might fill their Counter Case with evidence of that
character. We saw that they had gained their advantage, and it was
not necessary for them to tell us so.
If they were going to make the case any better by telling us anything about it, the time to have told us about it was before the time
for the exchange of the Cases. That was the time. We might then
have considered how we would make up our Case if they proposed to
make up theirs in that manner.
Now, my learned friend has re-stated the interpretation of Great
Britain. Upon that interpretation I am going to make, not many
observations, but a few, for the purpose to some extent, of showing
that they are entirely erroneous. The learned counsel, has dispensed
with the necessity, for he says that in part at least, it is erroneous.
He says that the notion of two hearings and two decisions is nonsense.
He says it is nonsense. I have not said that. Those are his own
words in reference to it.   But I wish to show that it is entirely erroneous.
In the first place, what is the question? The question is as to the
time and the manner in which evidence is to be submitted to the Arbi- ARGUMENTS ON
ARY MOTIONS.
trators.   It is not a question at all as to tl
which the Arbitrators are to determine any <
to them under the Treaty.   That is another
In the first place, there is one Case provid
provided for by the Treaty in which evidenc.
niy
nn which evidence can be submitted at all.
hearing is provided for, and the day fixed for
In the next place, an award is provided for,
therefore, that there is to be but one decision
avidence is now all before the Tribunal. It is
It will be fully argued orally. The Tribu-
rpose of decision; they will proceed, in the
"le first five questions submitted by
es the subject in such condition that
no Eegulations are necessary for the preservation of the fur-seal, they
will not consider any Eegulations at all, but make up their decision
upon the questions which they do decide, and publish it by their award.
If, however, their decision shoulel be of a character to make it necessary to go into the question of Eegulations, they will go into the question of regulations; and whenever they determine them they will
mitted to them, and also the Eegulations which they determine upon
and establish, and that aU at one time, and in one document, by one
That will be th
contention upon
Article VII conta
-11 thedeterm
jurisdiction of tl
Now '
at is the
»rt that.
the
nited States shall leave the subject in such a
that the concurrence of Great Britain is necessary to the estab-
,eal in or habitually resorting to the Behring Sea, the Arbitra-
11 then determine what concurrent regulations outside of the
That creates d
determine."   It c
"Sha
appiy
.   It says that the Arbitrators "shall then
■ that the Arbitrators shall then proceed to
u not think the word "then" covers the
ine the concurrent Eegulations, and
ihe report of the joint commission
them." I mean to say does not the
n of the phrase so that it means
_ .jr.—That would be putting in another "then"?
The President.—No; I mean to say do you not think the word
"then" covers both parts of the phrase?   I ask for your opinion.
Mr. Carter.—I don't think it does at all. By grammatical position
the word "then" does not belong there. If we could gather from the
Treaty generally that there was to be a separate decision upon the first
five questions, and then a reception of evidence upon this point of regulations; if we could gather from the Treaty generally any evidence that
that was the purpose and object of the parties, then certainly the word
"then" would qualify the whole matter; but as the Treaty is written
it is repugnant to it.
B S, PT XI 8 114 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
The President.—That is your point.
Mr. Carter.—Yes. It is plainly repugnant. If you make it qualify
that matter, then you have got to have two submissions of evidence,
two hearings, two decisions, and two awards. That is a necessity.
Well, now, that is precluded absolutely by the Treaty; and we have
rules of law that whenever the general purpose and spirit of an agreement;—and a Treaty is an agreement—is manifest, and there is some
particular clause which is ambiguous, and which maybe read one way,
or may be read another way, you must read it in accordance with the
general purpose and spirit of the agreement. Therefore I say at once,
as this language does not in terms require that the evidence should
then be submitted, we must read it in accordance with these other provisions of the Treaty, which do require that there shall be but one
hearing and one submission of evidence.
The President.—Perhaps it would be well to suspend your argument until tomorrow.
Mr. Carter.—I shall have occasion to occupy a little further time,
not long, I hope.
The Tribunal thereupon adjourned until tomorrow, Friday, April
7th, 1893, at 11:30 a. m. SIXTH DAY, APRIL 7™, 1893.
The President.—Will you please to continue your argument, Mr.
Carter?
Mr. Carter—Mr. President, my argument yesterday was very
largely confined to a history and a description of the modes in which
the Case and Counter Case had been prepared, of the different views of
the parties respecting the interpretation of the Treaty upon the point as
to how they should be prepared: The efforts which.had been made to
accommodate those differences of opinion, the hope which had been
entertaiued that those differences had been accommodated, the failure
of that hope, all of which have been subjects of debate by Counsel who
have preceded me, and all of which have a bearing, although not a vital
bearing, on the immediate question before the Tribunal.
Near the close of the session, however, I was dealing particularly with
the support which is supposed by Counsel for Great Britain to be given
for their interpretation of the Treaty in the language of the seventh
Article. That is the subject, therefore, upon which I shall resume my
line of argument, and as it may not be fully in the minds of the Arbitrators, I shall again read the Article and state the contention which is
built upon it by the Counsel for Great Britain. " 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
proper protection and preservation of the fur-seal in, or habitually
resorting to, the Behring Sea, the Arbitrators shall then determine what
concurrent Eegulations outside the jurisdictional limitsof the respective
Governments are necessary, and over what waters such Eegulations
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."
The suggestion is, the contention is, that this means that the Eeport
of the joint Commissioners thus referred to and the other evidence thus
referred to are to be laid before the Tribunal after the decision to
which it shall have arrived and not before. I stated at the time, that,
upon the face of the Article, there was nothing at all unreasonable in
that suggestion, and that it might possibly be so; but when you fully
consider the character and consequences of thatinterpretation, it seems
to be wholly inadmissible for these reasons.—First, it supposes that
there are to be two decisions by the Tribunal: first a decision upon the
questions as to the exclusive jurisdiction of the United States, and
then a decision upon the subject of regulations; and if two decisions,
then two awards, all of which is in direct repugnance to the terms of
the Treaty. In the next place, it supposes that a part of the evidence
in the Case, and I may add, and should add, by far the most important
evidence in the Case—more important in the sense that it is the only
part of the evidence which is disputable—that the disputable part of madef
end the
already
irthe
t they
part ux
siderab
necessi
le dis
;y for
116 ARGUMENTS ON PRELIMINARY MOTIONS.
the 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.
Tt, fl.rmp.ars lmnn the face of the Treaty that most careful provision was
sion of evidence to each party by the other, to the
L have an opportunity of answering it. We have
le only disputable part of the evidence, the only
3 to be apprehended that there is to be any con-
nd, therefore, the only part which there is any
ing, 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 importance in having an
opportunity for reply, most careful provision is made for giving an
opportunity for reply; but, as to that part of the case where the evidence 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 parties, that it seems to me it should be immediately rejected, unless the language of the Article is so distinct and
unequivocal as to leave no room for doubt. When we look at the language of the Article, we perceive that it is not so distinct and unequivocal, for it does not savthat this Eeport of the Commissioners and other
tunity each to answer the evidence and allegations of the other, we
must at once come to the conclusion, as I respectfully submit, that that
is the method and that is the time when this evidence is to be submitted. 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 support to their contention. I will now read Article IX. " The High Contracting Parties have agreed to appoint two Commissioners on the part
of each Government to make the joint investigation and Eeport contemplated in the preceding Article VII, and to include the terms of the
said Agreement in the present Convention, to the end that the joint
and several Eeports 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 follows " : 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 T PRELIMINARY  MOTIONS. 117
the question of concurrent Eegulations.
upon the word "contingency". That,
al, nor will I say it is unreasonable. We
ation of any word in any agreement to
iment, and when there is a contingency
ele, they infer that that is the contingency
ell now, we must not take it that it is so,
all the consequences, the inadmissible and
bried in the seventh
r, clear on this point
he negotiations and
ly, which led to the
Bhou
Id be resor
make that
se of the d
Arb
m Panncefe
e Append!.
ies, and proposes for the first
srsv which, presumably, as it
ion on the part of Mr. Blaine,
the proposal of the United
Br Majesty's Government, that 118 ARGUMENTS   ON  PRELIMINARY   MOTIONS.
itself in the course of our discussions, I do not despair of arriving at a
solution which will be satisfactory to all the Governments concerned".
He then goes on to say that this scheme he has prepared and submits
in an inclosure, and that inclosure is to be found on page 457. It is
entitled:—"Draft Convention between Great Britain, Eussia and the
United States of America, in relation to the fur-seal Fishery in the
Behring's Sea, the sea of Ochotsk, and the adjoining waters ". "Article
I. The High Contracting Parties agree to appoint a mixed Commission
of Experts."—here is the first occasion of the suggestion of this Commission of Experts—"who shall inquire fully into the subject, and
report to the High Contracting Parties within two years from the date
of this Convention the result of their investigations, together with their
opinions and recommendations on the following questions:—1. Whether
Eegulations properly enforced upon the breeding islands (Eobin island
in the sea of Ochotsk, and the Commander islands and the Pribiloff
islands, in the Behring's Sea) and in the territorial waters surrounding
those islands, are sufficient for the preservation of the fur-seal species.
H If not, how far from the islands is it necessary that such Eegulations
should be enforced in order to preserve the species? 3. In either of
the above cases, what should such Eegulations provide? 4. If a close
season is required on the breeding islands as well, what extent of
waters and what period or periods should it embrace?"
The Commissioners were to be appointed to report for the information of the Governments on those points, and they were to be experts.
"Article II. On receipt of the Eeport of the Commission, and of any
separate Eeports which maybe made by individual Commissioners, the
High Contracting Parties will proceed forthwith to determine what
International Eegulations, if any, are necessary for the purpose aforesaid, and any Eegulations so agreed upon shall be embodied in a further
Convention, to which the accession of the other Powers shall be invited."
Now the next stage was to endeavour to come to an agreement upon
the basis of such Eeport. "Article III. In case the High Contracting
i Parties should be unable to agree upon the Eegulations to be adopted,
the questions in difference shall be referred to the arbitration of an
impartial Government, who shall duly consider the Eeports hereinbefore
mentioned, and whose award shall be final, and shall determine the
conditions of the further Convention." As the original suggestion of
the whole scheme thus finally came to the form and shape in which it
now stands, what did it contemplate?
The President.—May 1 ask the gentlemen of the United States
whether Eussia, which was supposed to be a party in this intended
Convention, took part in those negotiations?
Mr. Carter.—Eussia was to a certain extent consulted; and it will
appear on the face of this suggested scheme that the contemplation was
that Eussia should be brought in. I could not say now, because I cannot state with accuracy, how far Eussia was at that time an actual participating party, or only whether at this time it was contemplated that
she should be made a participating party.
The President.—Mr. Foster might be perhaps aware, and could tell
us whether the draft of the Convention was communicated in fact to
Eussia, or whether it was a draft that remained between the United
States and England, because then, of course, it would have much less
authority, I might say.
Mr. Foster.—I am not prepared at this moment to give an explicit
answer. I was not at that time Secretary of State, and I could only,
therefore, make a reply from my knowledge of the correspondence.   I ARGUMENTS  ON PRELIMINARY  MOTIONS. 119
know that previous to this date, a few months previous, the British
Minister, the Bussian Minister and the then Secretary of State, Mr.
'Blame, were in active and frequent conference on this subject. I shall
nave to refresh my memory as to the precise date of their conference in
connection with this matter, and I am not, therefore, prepared at this
time to give an explicit answer as to whether this particular proposition
was formally submitted to the Bussian Minister or not. That can at a
later stage, before the discussion closes, be answered.
Sir Charles Eussell.—I may say, Sir, that I am in a position to
state- to the Tribunal what the facts were on this point. It was contemplated, as the concluding Article shows, that the accession of other
Powers should be invited to the Convention; and there were communications with other Powers, but no other Power became a party to the
Convention.
The President.—You will see that this is not a Convention but a
draft of a Convention; and the purport of my interrogation was this.
The authority of the draft, which is submitted to us by Mr. Carter, and
used as a part of his argument, will have more or less to be taken into
consideration according to the stage of diplomatic proceedings which
it indicates. Of course, if it had been communicated to Eussia, Mr.
Phelps as a Diplomatist would certainly acknowledge that it would
have had more consistency, and, consequently, more importance, than
if it was merely a sort of informal draft or a sort of continuation of
private conversations between the American and English Governments,
or their representatives.
Mr. Phelps.—My learned friend is right in saying that at no time in
the progress of these negotiations was any Convention actually entered
into between the United States and Eussia; nor did Eussia become
formally a party to any convention between the United States and
Great Britain; but in the years 1887 and 1888 at any rate, when these
negotiations were first commenced on this subject, the representatives
of Eussia in London, as the correspondence that is before you shows
(though I cannot at this moment refer you to the particular pages),
were invited to participate and did participate and gave informally
their sanction to the Agreement and their promise to join it if it should
be consummated j but as it never was consummated at any time, that
fell through. The correspondence, as I have said,—-the diplomatic correspondence—during those years will prove that. How it was as late
-as 1890, I am at this moment unable to say,—whether there was any
correspondence with Eussia at that time or not.
Sir Eichard Webster.—Might I point out, Sir, that the draft Convention, as to which you have asked the question, is the one submitted
in the year 1890, as Mr. Phelps points out, long after the date he refers
to of communications with Eussia. Whatever may have passed with
reference to communications upon other matters, it will be found in the
correspondence that that draft Convention was not submitted to Eussia,
nor were they asked to become parties to that; and I think it will
appear from the concluding words of Article 12 of that draft, that
1 The High Contracting Parties agree to invite the accession of the
other Powers to the present Convention"—I think it will be found, when
the correspondence is traced, that the draft Convention was not submitted to Eussia.
Mr. Phelps.—I may say, Sir, that we will have references prepared
and submitted to the Tribunal as to this correspondence on either side.
The President.—However, it was drawn up in such a way as to
suppose that Eussia would be a party, so that the other parties, to 120 ARGUMENTS on preliminary motions.
which Sir Eichard Webster alluded, would be parties other than Eussia.
It was to be a Convention between three parties.
Mr. Phelps.—There was a correspondence between Mr. Bayard, who
was then Secretary of State of the United States, and various other
Powers on this subject,—Japan, Germany, and some others. So that
the United States from the character of their replies had a right to
expect, if they were fortunate enough to conclude a Convention with
Great Britain, that the adhesion of these other Powers would be given.
It was contemplated by both parties that the adhesion would take place,
if that was ratified between Great Britain and the United States.
The President.—And Eussia?
Mr. Phelps.—And Eussia.
Sir Charles Eussell.—This is really very wide of the mark.
The President.—My question was perhaps rather more a diplomatic
than a judicial one; but my diplomatic colleagues will not be surprised
at the importance I attach to these details, because they know by the
practice of diplomatic life that a Convention would scarcely be prepared
by two parties when it is to result in a Convention between three. There
is a certain difference which my diplomatic colleagues on the Arbitration will understand; and that was the purport of my observation.
Mr. Carter.—Permit me to say, Sir, that the interrogatory you have
been pleased to address to us and the various answers given to it may
become at some time interesting at least, if not important—to know how
far Eussia diel participate in the negotiations in reference to a Treaty—
how far she was expected to participate, and when all such participation
ceased. For the present, however, I do not think those enquiries are
material; and, for the object for which I call the attention of the Tribunal to the proposed draft Convention, they are wholly, as I conceive,
immaterial. The purpose which I have in view is to call the attention
of the Tribunal to the first suggestion of a settlement of this controversy through the combined instrumentality of a joint Commission and
an Arbitration.
The President.—In order to exhaust this, although Mr. Carter does
not find it quite material to the point, I would beg permission to remind
him of an extract from the despatch of Sir Julian Pauncefote to Mr.
Blaine received on April the 30th. It is in the appendix of the Case of
the United States, Vol. I, page 206—the last paragraph of page 206. Sir
Julian Pauncefote says: " I have, out of a deference to your views and to
the wishes of the Eussian Minister, adopted the Fishery line described
in Article V"—it is quite another object, but it proves that at that
time there was a communication with Eussia—" and which was suggested
by you at the outset of our negotiations. The draft, of course contemplates the conclusion of a further Convention after full examination of
the Eeport of the mixed Commission. It also makes provisions for the
ultimate settlement by Arbitration of any differences which the report
of the Commission may still fail to adjust." That is the draft Convention which you were alluding to.
Mr. Carter.—It is.
The President.—It is the same draft.
Mr. Carter.—It is.
The President.—That proves that you were in communication with
Eussia more than you thought yourself. That observation is rather an
advantage to you.
Mr. Carter.—We may have been in the most intimate and daily
communication with Eussia for all I know, but whether that be so or
not, it is foreign to the purpose of my enquiry. ARGUMENTS  ON PRELIMINARY MOTIONS. 121
The President.—Well, perhaps not quite so; because it alludes to
the document and refers to it and therefore gives it, more authority in
a diplomatic point of view at any rate, although not perhaps from a
judicial point of view.
Mr. Carter.—What I am now on is to know the meaning of the
word "contingency" in the Article IX of the Treaty between the
United States and Great Britain. Allow me to repeat, therefore, that
the first suggestion, so far as I am aware, of the scheme of settling this
controversy through the joint instrumentality of a Commission and of
Arbitration is to be found in this note of Sir Julian Pauncefote, and
that scheme you will perceive is this. It contemplates the appointment
of a Commission of Experts to inquire into the whole business of seal
life and to report upon the question of Eegulations. It contemplates,
in the next place, the probability that when that report is received by
the two Governments they can conclude without difficulty and without
any further instrumentality a Convention for the purpose of preserving
seal life by Eegulations. It contemplates in the next place, that is to
say, in the contingency that they should not be able to agree, that the
questions as -to which they should disagree should be settled by the
Arbitration of an impartial Government—that was the sort of Arbitration then thought of.
The learned Arbitrators will bear in mind, therefore, that the Arbitration thus foreshadowed at this early period was solely confined to
the question of Eegulations -necessary to preserve seal life. It was to
have nothing to do with Eussian pretensions of dominion in Behring
sea,—nothing to do with the pretensions of the United States as to
dominion in Behring sea,—nothing to do with any question of property
in the United States in the seals, but had solely to do with the question
of what regulations might be necessary for the purpose of preserving
I the race of seals. That was the sort of Arbitration proposed, and it
was to be limited to that.
According to that scheme, therefore, if the two Governments came to
an agreement on the basis of the Reports, that would be an end of the
whole, business, and there would be no Arbitration, although it was proposed by the Convention that an Arbitration should be provided for, to
spring into operation in the case of an inability of the two Governments
to agree, and then to decide as to what Eegulations should be needed.
■ffirat was the scheme. You will perceive, therefore, that the Eeports of
this Commission would be laid before the arbitration of an impartial
Government in the contingency, and only in the contingency, that the
Governments should fail to come to a settlement of the controversy by
Convention based upon those Eeports. Therefore, at the very outset
of these negotiations there was a double aspect to the scheme of settlement: (1), an effort to settle without Arbitration; (2), a provision for
calling the powers of an Arbitration into operation in case of a failure
of that effort, and it was only in the contingency of such failure that
any use would, be made of these Eeports of the Joint Commission in
any Arbitration. Now, that double aspect thus stamped upon this
scheme of settlement at the start has been preserved all through the
negotiations and is still preserved in this Treaty. In the course of the
negotiations, and they were quite long, and many difficulties were
encountered before the thing was got into actual shape, the scope of
the suggested Arbitration was greatly enlarged. Instead of being confined to the question of Eegulations for the preservation of fur seals,
it was to include questions as to the exclusive jurisdiction in the United
States in Behring sea, questions as to the property of the United States 122 ARGUMENTS  ON PRELIMINARY MOTIONS.
in the fur seals, not embraced in the original suggestion,—the scope of
the Arbitration was enlarged, but it was still contemplated, although
an Arbitration was agreed upon and provided for, that it might never
have to be resorted to, and would not be resorted to if the parties should
come to an agreement by Convention. If the Joint Commissioners
should report to the two Governments, and the two Governments should
find themselves able to come to an agreementin respect to Eegulations,
why then the contemplation was that this Arbitration should not be
carried forward. Of course it would be idle, preposterous indeed, to
carry it forward after the whole controversy had been settled by the
parties,—to call upon Arbitrators to determine what rights there were
between the parties when they had made a settlement with each other
that dispensed with the necessity of enquiring into rights at all.
Now we find that, when they assumed final shape, the Agreement for
the Arbitration and the Agreement for the appointment of the Joint
Commissioners were separate. They were signed separately before the
Treaty was finally brought out, and those separate instruments thus
separately signed are found upon page 9 of the Appendix to the British
Counter Case, Volume I. This is the text of the Agreement for the
Joint Commission. "Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other
Government, all the facts having relation to seal life in Behring sea, and
the measures necessary for its proper protection and preservation. The
four Commissioners shall, so far as they may be able to agree, make a
joint Eeport to each of the two Governments; and they shall also report,
either jointly or severally, to each Government on any points upon which
they may be unable to agree. These Eeports 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."
Now, this word "contingency" occurs there. What is that contingency? Why, it is the same contingency contemplated by the scheme
of Sir Julian Pauncefote; that is, the contingency that the Government
shall not be able to come to an agreement by Convention, which should
settle this matter without the intervention of an Arbitration.
Mr. Justice Harlan.—Do you recall, Mr. Carter, just here, on what
date the Governments informally agreed upon those terms for a Joint
Commission?
Mr. Carter.—I cannot, Sir.
The President.—Article IX refers to an agreement.
Mr. Carter.—I cannot do that now, Sir; but I shall very presently
refer to evidence which will give you some information upon that point.
The President.—Was the agreement by which the Governments
agreed upon a Joint Investigation and Eeport, the object of a formal
convention, or was it .merely an "unofficial" agreement?
Mr. Justice Harlan.—I have a general recollection, from looking at I
the documents before this hearing was commenced, that the terms for
this Commission, just as they appear in Article IX, were assented toby
the two Governments as early as July, 1891.
Mr. Carter.—I shall be able to show that they were assented to
before that.
Senator Morgan.—I would like to enquire, from anyone who has the
information, whether these Commissioners had not, in fact, made their
examinations and completed their labors on the Pribilof Islands before 7-
this Treaty was signed?
Mr. Carter.—Well, they had been appointed long before that. How
far they had proceeded with their labors I cannot say; but the matter which
eeed.-
to will t
-I am in
hrowl
the Tr<
Mr.
Foster.
actual
PRELIMINARy  MOTIONS. 123
to call the attention of the learned Aibi-
Commissioners had been investigating the subject before the Treaty
was actually signed; but now, whether that appears upon the Cases
anywhere, or not, I do not know.
Mr. Carter.—Well, I am going to show it, if the learned Arbitrator
will allow me. What has been said shows, and I suppose that I may
appeal to the diplomatic knowledge of the President to the effect that
agreements between two Governments, which it is contemplated will be
eventually put in the form of a Treaty and regularly ratified, and which
agreements can have no vital force until they are so incorporated in a
and acted upon long before the Treaty, it being supposed by both
parties that they have come to such a conclusion upon all the details
that there will be no difficulty in procuring the settlement of the Treaty
and its ratification. That took place here. This Treaty is dated on the
29th February, 1892, and so far as an actual binding obligation, evidenced by a formal Treaty, goes for the appointment of these Commissioners, none existed until February, 1892, and yet you find that on the
24th June, 1891, the Marquis of Salisbury appointed Sir George Baden-
Powell and Dr. Dawson Her Majesty's Commissioners, to proceed to
Behring Sea and make these proposed investigations, and they went
immediately thereafter and engaged in the work, and an actual com-
> mission was issued to them, as you will observe.
Senator Morgan.—I wish to enquire, Mr. Carter, if you will allow
|me, whether their Eeport which is embraced in the British Case was
based upon that investigation?
Mr. Carter.—It was. That very Eeport is the one based upon th at
investigation,—having no other foundation. You will see all this from
the preliminary pages of the British Eeport itself. It begins by instructions to the British Commissioners, from the Marquis of Salisbury, and
they are dated at the Foreign Office, June 24th, 1891, and on the sixth
of these preliminary pages is the actual Commission issued to them as
plommissioners; and that is dated the 22d Juue, 1891, nearly a year
I before the ratification of the Treaty.
missi
ake the
ments found themselves able to come to an agreement respecting the
measures necessary for the preservation of fur seals, no Arbitration
would be needed, and none would be called. It was only in the event
that they should be unable to agree that there would be any occasion
for an Arbitration at all, and that is the contingency, and that alone is
The President.—Do- you mean that this is the same contingency
which is specified in Article VII,—that both contingencies are the same
Mr. Carter.—The word " contingency » does not occur, may it please
I the learned Arbitrator, in Article VII of the Treaty. 124 ARGUMENTS  ON PRELIMINARY MOTIONS.
The President.—The word does not occur, but the meaning does.
Mr. Carter.—No. But I have dealt with the meaning there. I am
now dealing with the argument of my learned friends upon the other
side based upon this word " contingency", and what that means, and I
think I have now succeeded in showing, at all events to my own satisfaction, and as far as I can, to the satisfaction of the learned Arbitrators, that the "contingency" mentioned in Article IX of the Treaty is
the contingency that there should be any Arbitration at all.
I must make one modification of that:—" the contingency that there
should be any Arbitration at all" upon the subject of Eights or Eegu- j
lations. In the course of the negotiation, Great Britain had made
claims for damages, and provisions were inserted in the Treaty on that
score, and it might still be necessary, as those were in reference to past
occurrences, and would not be settled by the establishment of Eegulations for the future—it might still be necessary for the Arbitration to
discharge its functions and to be called together upon the question of
damages, but upon that question alone.
Now then, to sum up a little the substance of this debate—what has
been the contention of Great Britain on this subject? At the start,
they began with the interpretation that all evidence in respect of Eegulations, at least, and, as they say, all evidence in relation to seal life,
was not admissible until after a decision by the Arbitrators adverse to
the claims of the United States in respect to the questions of exclusive
jurisdiction, and that it was not until that decision was made that any
evidence would be competent or admissible in relation to seal life, and
that, therefore, any submission of evidence in relation to seal life in the
Case by either party was irregular, not allowed by the Treaty—a thing
which they protested against, and reserved their right to move the
Tribunal to strike out.
That was their attitude, and the explanatory note of Lord Eosebery
in reference to that was in answer to the suggestions from the Government of the United States that this provided no method by which
either party could answer the allegations of the other in respect to the
most important part of the controversy. His answer to that was:
"That is a method of procedure"; and the intimation was that it was
for the Tribunal itself to regulate it; so that after it had come to its
decision upon these questions of exclusive jurisdiction and found it
necessary to enquire into the question of concurrent regulations, it
would then establish some system of procedure by which the parties
would be apprised of the evidence relied upon by each other, and be
able to meet it, making necessary a new hearing and a new decision.
That was their first position. The main features of it are still asserted
by Counsel on the other side; but the absurdity of supposing that
there are to be two hearings, two submissions of evidence, two decisions,
and two awards, has" struck my learned friend. Sir Charles Eussell so
forcibly that he has been obliged to retire from that, and he says, if I
correctly understood him in the course of his argument, that there is
to be no such thing—there is not to be a decision, but he insists that
the evidence still is not admissible, until the Tribunal has determined .
that it must enter upon the question of regulations, but that determination it is not necessary to evidence by a judgment, or by a decision,
but by an intimation—that was the word, I think,—by an " intimation".
Sir Charles Eussell.—An intimation of a determinatiem.
Mr. Carter.—Yes, by "an intimation of a determination" an intimation that it had reached such and such a determination.
Now you will have observed all through this debate on the part of
the Counsel for Great Britain that there is an assumption that this ARGUMENTS ON PRELIMINARY MOTIONS. 125
evidence in relation to seal life—this vitally important part of the
evidence, and only disputable part—has a bearing only upon the question of regulations, or mainly that, thus defending the course pursued
by Her Majesty's Government in not incorporating any part of that
evidence into the original Case.
For you will perceive, that if* evidence bearing upon the subject of
seal life is competent and relevant upon the question of property, why,
then, consistently with their own interpretation of the Treaty, they
were bound to incorporate it into their original Case. For the question
of property is one of the five questions which it is made necessary by
the provisions of the Treaty that a categorical response should be
given by the Arbitrators.   The question of property is among them.
The question of Eegulations is put by itself; but the question of
property is among the first five, and if this evidence in relation to seal
life is competent and relevant upon the question of property, why they
should have put it into the original Case and not have reserved it, as
they did reserve it, until their Counter Case. Is evidence as to the
nature and habits of the fur seals not competent upon the question of
property? How can that idea be entertained for a moment? How can
the question of property be otherwise determined? Suppose both parties had acted upon the view suggested by Sir Charles Eussell and
maintained constantly by the Government of Great Britain—I will not
say maintained constantly, for they, with great respect, are inconsistent upon that point, as I shall presently show—but urgently insisted
upon at times, namely, that the testimony in relation to seal life is not
competent upon the question of property. Suppose both sides had
proceeded upon that view, and scrupulously omitted from their several
Cases any matter or evidence relating to seal life, and the Arbitration >
had gone on with the Cases prepared in that manner, this Tribunal
s? would then be called upon to determine the question of property without any evidence before it except the fact that seals were seals—that
is where we would have been. Now I respectfully submit to the
Tribunal that that notion that evidence in relation to seal life is not
competent upon the question of property is—I do not wish to use the
word in any disrespectful sense—but it is preposterous. Such evidence
is directly relevant to the question of property—principally relevant to
Sthe question of property, and it is the only evidence upon which the
I question of property can be properly decided.
Let me say in the next place, that this notion that they have brought
forward for the purpose of defending their conduct in the preparation
of their Case and Counter Case derives no countenance from the
diplomatic communications between the parties, or from the provisions
of the Treaty itself and those other instruments which are collateral
to the Treaty. Let me call your Honors' attention to the Modus vivendi
of 1891. It is contained in Volume I of the Appendix to the United
States Case, page 317; that part of it to which I invoke especial
attention is the fourth Article.
The President.—May I ask what is the date of that Modus vivendi?
Mr. Carter.—It is June the 15th, 1891.
The President.—Quite concurrently with the nomination of the
Joint Commission,—quite at the same time?
Mr. Carter.—Yes, Sir.
The President.—They concurred together?
Mr. Carter.—Certainly, Sir. .
The President. They concurred in time with the nomination of
the Joint Commission. 126 ARGUMENTS  ON PRELIMINARY  MOTIONS.
Mr. Carter.—This Article IV, which I am going to read to you, provides for the investigation which those Commissioners made.—" (4) In
order to facilitate such proper inquiries as Her Majesty's Government
may desire to make, with a view to the presentation of the case of that
Government before Arbitrators, and in expectation that an agreement
for arbitration may be arrived at, it is agreed that suitable persous
designated by Great Britain will be permitted at any time, upon application, to visit or to remain upon the seal islands during the present
sealing season for that purpose." Under the provisions of that Article
Her Majesty's Government appointed these two very Commissioners to
make those investigations, and appointed no other people; and it was
for the purpose of enabling them to present their Case properly that
this provision was to be inserted; so that the notion that knowledge
in respect to the nature and habits of seals and of seal life had no
place in the presentation of the Case is a totally erroneous one, contradicted by both parties by the Agreement into which they entered.
And Sir Julian Pauncefote writes to Mr. Wharton on the 21st of
June:
Sir: I have the honor to inform you that I have received a communication from
Her Majesty's Principal Secretary of State for Foreign Affairs to the effect that the
Queen has been graciously pleased, to appoint Sir George Baden-Powell, M. P., and
Prof. Dawson Commissioners to proceed to the Pribilof Islands for the purpose of
examining into the fur-seal fishery in Behring sea. In accordance with the instructions of the Marquis of Salisbury, I have the honor to request that permission may
be granted to these gentlemen to visit and remain on those islands during the current fishery season.
And in this communication of Mr. Wharton, then in charge of the
. Department of State of the United States, to Sir Julian Pauncefote he
said.—this is dated June 6,1891:
But in view of the fact that the evidence which the respective Governments will
present to the Arbitrators (if that happy solution of the pending difficulties shall
be attained,) must be collected during the present season, and as the definite agreement for arbitration cannot be concluded contemporaneously with this agreement,
the President directs me to say that he is quite willing to agree that Her Majesty's
Government may send to the Seal Islands, with a view of collecting the facts that
may be involved in an arbitration, and especially facts relating to seal life and the
results of the methods which have been pursued in the killing of seals, a suitable
person or persons to make the necessary observations. The present and the comparative conditions of the rookeries may become an important consideration before
Arbitrators in a certain event, and the President would, not ask that the evidence
upon this subject should be wholly from one side.
I am upon the point which our friends on the other side have insisted
upon before your Honors, that this evidence in relation to the nature
and habits of the seals is pertinent only to the question of regulations.
I have to say that that is inconsistent with their own views expressed
elsewhere; and not only expressed but acted upon.
I now call the attention of the learned Arbitrators to Chap. 7 of the
British Counter Case, which is to be found upon page 100. They are
there dealing with the question of property, and that dealing with the
question of property is extended from Chap. 7, p. 100, to Chap. 8, p.
154. There are fifty-four pages devoted to the question of property in
fur-seals and to the position taken by the United States in that behalf,
and the position taken by Great Britain in that behalf.
Sir Charles Eussell.—Will you kindly read the heading of the
chapter?
Mr. Carter.—Yes:
s of fact put forward by the United States ii ARGUMENTS  ON PRELIMINARY  MOTIONS. 127
And point Five of article 6 I will now read:
• ?t?8 ?e United States any right, and if so what right, of protection or property
m the fur-seals frequenting the islands of the United States in Behring Sea, when
such seals are found outside the ordinary three-mile limit?
That is the Article which presents the question of property, and the
title to this chapter which my learned friend desires me to read is,
"Consideration of allegations of fact put forward by the United States
in connection with point 5 of article 6." There is a devotion of 100
pages to the consideration of testimony in relation to the nature and
habits of seals and the characteristics of seal life as bearing upon the
question of property—all connected together in an argumentative chain
of reasoning, designed to show that upon those facts the United States
has no property in them. I mean to submit upon this, may it please
the learned Arbitrators, that the assertion of the learned counsel upon
the other side that the questions relating to seal life are not applicable
to any of the first five questions stated, and therefore should not go
into the Case, are contradicted by their own action.
Mr. Justice Harlan.—Mr. Carter, I find on looking at the proof of
the debate when Sir Charles Eussell was upon his feet, assuming this
to be correct, I put to him the question—he was discussing the origin
or basis of the right of property:
Wl
of th
The answer was:
I have said that in ray judgment, so far as the facts of seal life are material for
the question of law as to property in seals, they are not in dispute.
Then I put the questions in a different form:
When we come to determine the question if the United States has any right or
property in these seals or in the herd, do we consider, and ought we to take into
consideration, the facts in seal life?
The answer reported is:
Certainly.    So far as they are material, certainly.
Sir Charles Eussell.—So far as they are material, certainly.
Mr. Carter.—Yes, Sir; and yet the contention on the part of the
learned counsel has been, and the contention throughout this diplomatic correspondence has been—and it is upon that contention that
they defend their withholding of evidence in relation to seal life—that
it does not bear upon the question of property and does bear upon the
question of regulations.
The President.—Is there no evidence adduced by Great Britain in
support of these 100 pages of the Counter Case which you have just
alluded to.
Mr. Carter.—None in their case.
The President.—But in the Counter Case.
Mr. Carter.—Oh, volumes of it, and for the first time; and that is
what we complain of. If evidence upon the question of seal life bore
upon the question of property, that was one of the five questions upon
which the arbitrators were called upon to make explicit answers; and
everything bearing upon those questions is by the concession of all
parties to be incorporated into the original Case, and yet not one word
in respect to seal life was put by them iu their original Case.
That, the learned President will remember, was the subject of our
complaint; and the answer to our complaint was, "That evidence is not
relevant here; it bears only upon the question of regulations, and the 128 arguments on preliminary motions.
time for its submission does not arise until the Arbitrators have made
their decision upon the first five questions;" and therefore the Arbitrators must make their decision without the benefit of such evidence.
They protested that it ought not to be put into the original Case; that
the action of the United States Government in incorporating such evidence in their original Case was irregular, improper, and not allowed
by the Treaty. They reserve the right to move this Tribunal to strike
it out. They have committed themselves squarely to it; and yet what
I have the honor now to say is, that by their conduct they have refuted
their own interpretation, and in addition to that, bearing in mind what
was communicated to me by Mr. Arbitrator Harlan, it is expressly said
by them that the facts of seal life are relevant to the question.
I may also say that in their Counter Case, dealing with the facts of
seal life, and arguing the question of property, they use over and over
again'the report of their Commissioners, which they refused at first to
incorporate into their original Case, but which they afterwards, as the
Arbitrators will remember, furnished to us at our request upon the understanding that it should be treateel as a part of it.
The President.—Had not the British Government agreed to incorporate at your demand the report of their Commissioners into the original Case before the Counter Case was delivered?
Mr. Carter.—They had. They delivered their original Commissioners' report, and agreed that it should be treated as a part of their original Case. We accepted it on that understanding, but with the understanding also that it should be all the evidence upon which they would
rely as to the questions respecting the nature and habits of seals, the
question of property and the question of Eegulations.
Sir Charles Eussell.—Oh no!
The President.—Do you not think it was legal for them to use the
evidence of the report in the Counter Case, since the Counter Case
came after that admission of the report?
Mr. Carter.—Perfectly so.
The President.—I mean do you object to that? That is what I
enquire about.
Mr. Carter.—Not at all. I am not disputing the propriety of that.
It was entirely proper. I only meant to say that their use of the original
report in their Counter Case while arguing the question of property
shows that that original report is relevant to the question of property.
If relevant to the question of property, it ought to have been put into
their original Case.
In their argument they follow the same method. On page 27 they
have a part two, and that is entitled "Argument addressed to the fifth
question for decision under article six of the Treaty of Arbitration,
namely: "Has the United States any right of protection or property in
the fur-seals". And they go on in that argument, and make the basis
of it, their understanding of the nature of the habits of the seal. That
argument goes through many pages.
This is all I have to say, and certainly it is not necessary that I should
say anything further, in order to show that the contention made in argument, made in diplomatic correspondence on the part of the British
Government, that evidence touching the nature and habits of fur-seals
is not relevant upon the question of property is not only—begging the
pardon of my learned friends—preposterous uDon its face, but has been
refuted by their own action in a great variety of forms.
Now, why did they put evidence in relation to the nature and habits
of seals into their Counter Case?   Why did they put it there?   They ARGUMENTS  ON PRELIMINARY MOTIONS. 129
profess to say that it does not apply to the five questions stated, that
it is relevant only to the question of regulations; that the consideration
of the question of regulations is not yet in order, that it will not be in
order until the arbitrators have made a decision adverse to the United
States—that then, and then for the first time, will it be relevant; and
yet, notwithstanding that view, they have crammed their Counter Case
with it to repletion. Why elid they do that? What is their own excuse
for that course so inconsistent with their own view? They said they
did it out of deference to the views of the United States. Out of deference to the United States! That is to say—for such is the distinct
implication—the United States desired it. That is the implication; that
is the inference—that the United States Government desired it.
. What? The United States Government desire that the British Counsel
should put into their Counter Case what they had left out of their
original Case, and what ought to have been put there? Why, no. The
position of the United States was that anything in reference to the
nature and habits of seals which you have to submit is to be put into
the original Case. If you do not put it into the Case and at the time
when that is submitted, you must never put it in. That is the position
of the United States, was at the first, has always been, and is now; and
yet they say that out of deference to the views of the United States
they contradicted their own theory and inserted it in the Counter Case!
The insertion of that matter in the Counter Case is the great thing
to which we have objected. We object to that, and have objected afi
along, on the same grounds upon which we object to the reception of
the present supplementary report of the British Commissioners.
Now then, let me approach the point now before this Tribunal.
What is it? It is whether a certain document that has been placed
before the Tribunal of Arbitration should be retained or should be
returned to those who sent it. That is the question before you. . Is
the submission of that paper defensible upon any possible view? On
the view entertained by the United States concerning the interpretation of the Treaty, of course it is not; and I am not going to repeat
my argument upon that point, but to assume that I have sufficiently
established it. On our interpretation it is a wholly inadmissible proceeding to submit such a paper as that in the manner in which it was
submitted. What is the character of the paper? I don't know. I
have never seen it, and I have no information about it; but I suppose
I may say that it is to be presumed to have a bearing upon the merits
of this controversy. If it has not any bearing upon the merits of this
controversy, why of course it should not be received. It must be presumed to have a bearing upon the merits of this controversy. The
very fact that it is submitted shows that.
What bearing may it have? It may contain either arguments or
evidence, or, as they euphemistically style it, " trustworthy information". If it contains arguments alone, it is improperly submitted.
Learned counsel are to argue the case of the British Government, not
these Commissioners. If it contains evidence bearing upon this controversy, then as I think I have succeeded in showing, it is wholly
inadmissible. I have now to submit to the learned Arbitrators that it
is inadmissible upon their view of the Treaty—the view of the counsel
of Great Britain.
What is their view of the Treaty as to the time when they are permitted to submit evidence, even supposing that it bears upon the question of regulations only?   If it bears upon the question of property,
they must admit that it is admissible and only admissible as a part of
B s, pt xi 9
J 130 ARGUMENTS  ON  PRELIMINARY  MOTIONS.
the original Case; but assuming for the purpose of argument, that it
bears upon the question of regulations only, when, according to their
theory, is it admissible? It is admissible, according to their theory,
in a certain contingency, and in a certain contingency only; and what
is that? The decision by the board of Arbitrators adverse to the
United States upon the question of exclusive jurisdiction. Has that
decision been made? Certainly not. Therefore, upon their theory it
is not competent or admissible here. Let me ask whether it is admissible on the original theory of the British Government as modified by the
learned Counsel, who has so ably argued this question on their behalf.
How has he modified it? Why, he has said: "Any decision; I don't
mean a formal decision, I mean an intimation." Has that intimation
been given?   No more than the decision.
There is another aspect in which evidence might possibly be admissible, and that is, if the Arbitrators themselves after they come to the
question of regulations, or when they are considering the questions of
regulations suggest that further inquiries or further evidence is admissible, then it might come.   Have they made any such suggestion ?
Mr. Foster.—The provision is: "They may require a written or a
printed statement, or argument, or oral argument by Counsel."
Mr. Carter.—I will read it:
"And the Arbitrators may, if they desire further elucidation with
regard to any point, require a written or printed statement or argument
by Counsel upon it."   I stand corrected.
Mr. Phelps.—That is restricted to Counsel.
Mr. Carter.—That is restricted to argument, and does not deal
with evidence. Therefore upon no possible interpretation, not even
their own, is this supplementary Eeport admissible, and I submit very
respectfully to the learned Arbitrators that it should be promptly
rejected and returned. That is the only just disposition which can be
made of that paper.
I have concluded my argument in respect to that. I desire to make
one or two observations, not by way of argument upon this point,
because I have concluded that, and I am not going to attempt to take
it up again. My learned friend, Sir Charles Eussell, stated with some
emphasis that while the United States contended that evidence in relation to the nature and habits of the seals relevant to the question of
property and also relevant to the question of regulations, should be presented in the original Cases and presented only there, that we had ourselves acted in contradiction to that view and had incorporated evidence
of that character into our Counter Case contrary to our own views.
He referred in that connection, I believe, to the three reports of Capt.
Hooper and Capt. Coulson which deal with the condition of seal life in
1892; anel to the reports of certain Treasury officers, two or three of
them, also having relation to matters in 1892,1 believe. I do not know
that he referred to anything else.   That is all I remember.
Let me say in reference to the pieces of evidence thus referred to
that they may in part be subject to the criticism which my learned
friend puts upon them. That is, that they so far relate to seal life as to
be germane to the main questions, and therefore properly the subjects
of insertion in the original Case.
Sir Charles Eussell.—I would like to interpose here, Sir, in order
to avoid, so far as may be possible, matters that are really not in controversy. I was making no complaint of the insertion of that evidence.
I was pointing to the fact that it was evidence which from the nature
of the case we had no opportunity of in any way meeting or replying to. ARGUMENTS ON PRELIMINARY MOTIONS. 131
I was pointing out that that was a necessary incident, almost indeed a
necessary incident, to the proceedings of a Tribunal constituted as
this is; but I was making no complaint of its appearing there, in anv
sense. J
The President.—We perfectly understood you.
Mr. Carter.—No complaint; but still my learned friend insisted
with great emphasis that the course thus pursued by the United States
was not justified by their interpretation of the Treaty.
Sir Charles Eussell.—Oh! no.
Mr. Carter.—I understood him to say that. If I am mistaken
about that, then I will pass by the observation.
Sir Charles Eussell.—It was addressed solely to the argument
of my learned friend, Mr. Phelps, who was complaining of the injustice
of certain evidence being put forward which the other side had not had
an opportunity of answering. My reply was that that was a necessary
incident of this case, that they had included in their Counter Case (and
I was not complaining of it or making objection to it,) matter which we
had no opportunity to answer.
Mr. Carter.—Well, I must have a word to say in regard to the
observation just made, that the presentation of evidence without giving
the other party an opportunity to reply to it is a necessary incident of
this controversy. I have a word to say upon that point, if any argument is made upon that. To a certain extent, and to a very small and
insiguificant extent, it is a necessary incident of this controversy; but
in regard to the main and principal features of this controversy, it is
not, I may be permitted to say.
In reference to all the main questions in dispute here, if the parties
had fully, fairly, faithfully presented the allegations upon which they
relied, as the Treaty designed that they should, in their original Cases,
there would have been full complete and substantial opportunity, by
each party to reply. Of course, there is no opportunity here to reply
to replying evidence. The course of pleading must stop somewhere, and.
according to the provisions of this Treaty it stops with the Counter
Case. There is no opportunity to reply to that, but the provision of the
Treaty supposed that there would be no new matter inserted in the
Counter Cases; if the provisions of the Treaty were faithfully followed,
there would be no new matter inserted in the Counter Cases, and no
occasion, therefore, to reply.
I do not mean that it is not a necessary incident of that course of procedure that there might be put into the Counter Case, of one of the parties or.of the other, some matter as to which the other side might very
properly desire to add further explanation. That is indeed a necessary
•incident, but it is too small and too insignificant for notice or attention,
in view of the fact that the great purpose of reply, the great purpose of
giving each of the parties an opportunity to answer the proofs and allegations of the other, is provided for by the Treaty, and that the want
of an opportunity to further reply is not in any material or substantial
sense a necessary incident of the manner in which the controversy is
provided to be conducted by the terms of the Treaty itself.
I wish to say in reference to these further reports of ours, which are
not complained of: we inserted them in the Counter Case ? Why ? We
could not have inserted them in the original Case. They were investigations in respect to matters which arose after the original Case was
prepared, or while it was being prepared, and therefore could not be
inserted in it. We therefore did not withhold anything. The matter
did not exist until after the preparation of the original Case, and there- 132 ARGUMENTS  ON PRELIMINARY  MOTIONS.
fore could not have been introduced into it. Next, we. suppose that
much of the matter contained is germane and proper to be inserted in
the Counter Case by way of reply to what was contained in the Eeport
of the Commissioners of Great Britain, which was, by agreement, made
part of the original Case of Great Britain, and therefore perfectly regular in that point of view. So far as there may be anything beyond
that, if there is any objection to it, if it is supposed by the other side
that this is matter which ought to have been inserted in the original
Case, and which, had it been inserted in the original Case they should
have had an opportunity to reply to—we do not ask to have it retained;
and upon their objection, if they can point to any matter distinctly of
that description we are willing to have it stricken out, provided, of
course, the same rule is applied to them in respect to any new matter
submitted by them in their Counter Case.
Mr. Foster.—The matters relate to the conditions of seal life in 1892.
Mr. Carter.—Of course, that is what I have said, that it had reference to facts occurring while the Case was under preparation, that is
seal life in 1892.
The President.—You practically make no motion for retiring part
of the evidence brought forward in the British Counter Case.
Mr. Carter.—We do not make any such motion. Yesterday I
endeavored to explain to the learned arbitrators the grounds upon which
we thought it inexpedient to do so. We could make that motion, and as
we conceive, it should be granted and would be granted. But where
should we be left? Why, the practical failure of the arbitration almost
might be involved, or we be called upon to go into a contest here with
our adversaries crippled. That is not the kind of controversy in which
lawyers like to engage, even where the crippling comes in consequence
of their own fault ana not in consequence of any fault of ours. It is not
a victory won over an adversary who is in that condition that we desire.
It is a settlement of this controversy upon just grounds. It is a settlement of the controversy when the Tribunal has before it all the facts
proper to be looked into for the purposes of a settlement. That is what
we desire; what we regret is, that those facts were not placed before
the Tribunal at the time and in the manner in which it was contemplated by the provisions of the Treaty they should have been placed.
That is our grievance—as my learned friend has observed that we seem
to be in search of a grievance. I confess it is a grievance. Must a
party when he it stricken with a pretty severe blow rest quiet under it
and say nothing about it, or else be stigmatized as searching for a .
grievance? We maybe subject to that observation, that criticism; but
it is in our judgment a circumstance far too important to be omitted
from deliberate consideration in the course of the discussions in this-
case.
There is one other matter which has been referred to and assumptions made in reference to it several times during the course of the
argument, and which, although it is not in any sense material to the
present discussion, I ought perhaps to say a single word in regard to.
Calling the attention of the arbitrators again to the provisions of
article 6, it appears that there are four questions which purport upon
their face to relate in some manner to an asserted power or jurisdiction
of the United States in Behring Sea. There are four of them of that
character.   The fifth is:
Has the United States any right, and if so what right, of protection or property
in the fur-seals frequenting the islauds of the United States in Behring sea when
such seals are found outside the ordinary three mile limit. ARGUMENTS  ON PRELIMINARY MOTIONS. 133
That fifth question does not purport on its face to relate to or involve
any matter of exclusive jurisdiction. It differs from the other question
in that regard. It embraces certainly the property question. Whether
it embraces anything else, or not, is perhaps not entirely clear.
Now let me call your attention to Article VII:
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.
I The foregoing questions as to the exclusive jurisdiction."
Now, how is that to be interpreted ? Is it confined to those four first
questions which purport on their face to relate to exclusive jurisdiction,
or does it include the whole? That is the question, does it include the
whole?
A plausible argument could be made in support of either of those
positions. It might be said that the foregoing questions as to the exclusive jurisdiction of the United States relate to the first four and do not
include the fifth question, that not being a question relating to the exclusive jurisdiction of the United States; and I think upon the other hand
it may be claimed with equal, perhaps greater plausibility, that Article
VII contemplates all five of those questions as relating, in a greater or
less degree, to the exclusive jurisdiction of the United States.
You will observe that it says: "If the determination of the foregoing
questions as to the exclusive jurisdiction of the United States." That
implies, at least, that they all relate to the exclusive jurisdiction of the
United States.
The President.—You do not mean to say "jurisdiction" is the
same as "rights of sovereignty"?
Mr. Carter.—Well, now, what "jurisdiction" means, who knows?
We shall have something to say about that by and by. That is a word
of very ambiguous import; I shall talk more about this question when
we get to the merits of the case. I do not wish to anticipate the discussion at all here, but only to throw out a suggestion that either of those
two views may be taken; and what favors the second view, in my
judgment, is this consideration: If it were held that the United States
had a perfect property in the fur-seal, even while it was at sea, the
question may be made, indeed it has been made by Great Britain,
whether the United States has the right to enforce the protection of that
property on the high seas by the assertion of acts of power; in other
words, whether it has the right to seize and carry in for condemnation
a vessel that is engaged in an invasion of that right? The position is
taken by Great Britain in this controversy that, even if the right of
property were fully established, the power thus to act in the way of
seizing a vessel does not exist; that is to say, that even if the right of
property exists you have no jurisdiction to do that particular thing, the.
seizure of a vessel on the high seas by way of protecting that property.
Therefore this question: "Has the United States any right, and if so
what right, of protection or property in the fur-seals frequenting the
islands of the United States in Behring sea when such seals are found
outside the ordinary three-mile limit," may properly be regarded as a
question of jurisdiction, in the vague sense in which "jurisdiction" is
used throughout this Treaty.
Both those interpretations may be, with a good deal of reason, entertained. I have now to suggest, however, that it makes not the slightest
difference which view is taken upon that point, for the same result will
be arrived at in either case. • Suppose we take the first view, that it is 134 ARGUMENTS   ON   PRELIMINARY   MOTIONS.
confined to the four first questions and does not include the question of
property.
"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 Eegulations for the proper protection and preservation of the fur-seal
in or habitually resorting to the Behring sea, the Arbitrators shall then
determine what concurrent Eegulations outside the jurisdictional limits
of the respective governments are necessary", etc. If we limit that to
the four first questions what would be the grounds of proceeding?
The President.—Do you not think that we might reserve these very
interesting observations for our next sitting?
Mr. Carter.—After the recess?
The President.—Yes, after the recess. It would afford you occasion
for a rest, and I dare say you require a little rest yourself.
(The Tribunal thereupon took a recess for a short time.)
Mr. Carter.—I was speaking, when the Tribunal took its recess, upon
a matter about which there has been some debate, but which is not vital
to the present motion at all, respecting the interpretation which is to be
placed upon the words in the seventh Article of the Treaty, namely:
"The foregoing questions as to the exclusive jurisdiction of the United
States." I had said that that was susceptible of two interpretations,
one of which would limit these foregoing questions to the first four
stated in Article VI and did not include the property question, and the
other interpretation would include all of them, the property question as
well. I also observed that it did not seem to me that anything of practical importance depended upon which of those views should be taken
to be the true one, for the result as it seemed to me, would in either
case be the same. It is that which I wish very briefly to show to the
Tribunal—that the result would be the same in either case. After the
arguments have been finally concluded, it will be the duty of the Arbitrators to proceed according to the first provision of Article VI: "Iu
deciding the matters submitted to the Arbitrators, it is agreed that the
following five points shall be submitted to them in order that their
award shall embrace a distinct decision upon each of said five points."
Therefore, their first task will be to make their decision on those five
points. Let us assume it to have been made, and that the decision in
respect to the 5th point is that the United States has the full property
interest in the fur seals which it asserts. Let me suppose, for the purpose of argument, that that state of things is found to exist when the
Arbitrators have complied with their duty, and decided the first five
questions. It will' then become necessary for them to consieler whether
the subject is left "in such position that the concurrence of Great Britain
is necessary to the establishment of Eegulations for the proper protection and preservation of the fur-seal in, or habitually resorting to the
Behring Sea." Suppose they put upon that clause the narrower interpretation, namely that it includes only the first four questions, and ask
whether the subject is then left "in such position that the concurrence
of Great Britain is necessary". Let me assume that the decision is
adverse to the United States on the four points, and on the fifth point
is fully and completely in favor of the United States. Then the question with the Arbitrators is: Does the decision of the Tribunal on the
first four questions leave the subject "in such position that the concurrence of Great Britain is necessary to the establishment of Eegulations
for the preservation of the fur-seal". Well, of course, the first four
questions having been decided adversely to the United States, so far, ARGUMENTS  ON  PRELIMINARY  MOTIONS.
at least, the subject is left in a
of Great Britain; but the deci
5th question is in favor of the '
erty interest. Does that altei
decision upon the subject? Is
that the concurrence of Great
on the opinion of the Arbitn
States has to protect an admitt
claims, that it does have the full right of protection, it may then think
that no assistance is necessary for the preservation of fur-seals, by
regulations, and that the concurrence of Great Britain is not necessary,
but that the United States, having the power to prevent pelagic sealing, is fully armed with the right to take whatever-measures are necessary for the protection of fur-seals.
Suppose, however, they happen to be of the view, which has been
taken by Great Britain in the course of this controversy at some times—
whether it will be still persisted in argument, I cannot say—namely,
though the United States may have a property interest in the fur-seals,
it cannot seize a vessel outside the ordinary three-mile limit that is
engaged in pelagic sealing then it would be necessary to have the concurrence of Great Britain to make effectual regulations for the preservation of the fur-seal.
Let me suppose the contrary view, and that the foregoing question
relating to the exclusive jurisdiction of the United States included all
these five questions, the property question, as well, what will be the
course of procedure then? The Arbitrators will make a decision on all
these five questions. Then the question which they will have to consider will be, does the decision which we have made on these five questions leave the subject in " such position that the concurrence of Great
Britain is necessary for the establishment of regulations to preserve
the fur seals?" And let it be supposed, again, that the decision is
adverse to the United States on the first four questions and in favour
of the United States on the fifth. Well, they would go through with
precisely the same considerations which I described them as being
obliged to go through with on the supposition that these foregoing
questions, as to jurisdiction, relate only to the first four questions and
do not include the property question. It would be the same thing in
any event, and if we suppose that the decision of the Arbitrators should
be against the United States on the question of jurisdiction, then of
course it would be their view that the concurrence of Great Britain
would be necessary as to regulations to preserve the fur-seal. It,
therefore, seems to me, so far as I can perceive, that no practical
importance of any considerable moment rests upon the question,
whether we regard the term "the foregoing questions as to the exclusive jurisdiction of the United States" as embracing the first four questions mentioned in Article I or embracing the entire five.
That is the explanation I desire to make.—With this I should stop,
and I had said to the Tribunal that I should not again touch the question relative to the introduction of the paper which was the subject of
our motion, but I reckoned a little without my host. There is a single
position taken by my learned friend, Sir Charles Eussell, to which I
have not replied, and to which if I should fail to reply it would be perhaps taken as a concession, and I do not desire that I should be considered as making any concession on that point.   I shall say but a word 136 ARGUMENTS  on PRELIMINARY  MOTIONS.
about it. That position is, that the submission of the evidence to the
Arbitrators on the question of regulations at least is admissible at any
time down to the final decision. It is indeed necessary for him to take
that position. For as I have already shown, there is no other ground
upon which this paper is admissible, and it being necessary for him to
take that position he finally does take it, and says he does not withdraw. ' I must say one word therefore in reference to it. If that is
true, the paper was admissible on the day when it was delivered. It
has been admissible everyday since then, and will be admissible down
to the last day on which we shall be engaged on the argument of this
question. If it was admissible the day before it was actually delivered,
it was admissible every day before that up to the time when the Counter Case was delivered and might have been incorporated into the
Counter Case as an appropriate part of that document. In other words,
the position of the learned Counsel is, that this Supplementary Eeport
of the British Commissioners, and any evidence like it directed to the
same point, is admissible at all times at the pleasure of Her Majesty's
Government with this single exception, that it is not admissible as
part of the original Case and could not have been put in there. That
ground they still assert. In other words, his position is, that the
British Government is able to lay before the Arbitrators on the question of regulations such evidence as they please at any time and in any
manner, provided that they do not offer it at a time and in a manner
when the United States can reply to it. That is all the observation
that I have to make to this position.
With these observations, and greatly regretting the inordinate
length, for which I may be perhaps in some way responsible, to which
this argument has been protracted, and with many thanks to the Arbitrators for the consideration they have extended to me, I take my leave
of this motion.
Sir Charles Eussell.—With your permission, Sir, I would claim
leave from the Tribunal, not to go over any point in my original argument or anything that has been advanced in reply to it, but to refer to
certain matters that have been introduced by my learned friend, Mr.
Carter, and not previously advanced in argument, which I have uot had
the opportunity of dealing with. I mean the matter relating to the
diplomatic correspondence which took place in 1890 and the argument
sought to be based on that correspondence. I claim respectfully the
concession from the Tribunal, the opportunity in a very few words of
showing that my learned friend has entirely misconceived the purport
of that correspondence.
Mr. Carter.—I must object to this.
Sir Charles Eussell.—Well, Sir, perhaps I ought to have said
this in addition, that if the Tribunal decide that that diplomatic correspondence is relevant to the construction of the Treaty which is the
question before the Court, then I claim the right to answer that branch
of the discussion or argument; but, of course, if, as I shall contend, it
is not relevant, and if the Tribunal should have that view, I do not
seek the opportunity of replying. Should it, however, enter into the
minds of any of the Tribunal that it is relevant to the construction of
the Treaty, then I claim to point out the fallacy and the mistake under
which my learned friend labours.
The President.—The diplomatic correspondence has been communicated to us as part of the information that it is necessary for us to
take into consideration, and, consequently, we cannot help considering
it as relevant, in a certain measure, to the Treaty under which our
powers are defined. ARGUMENTS  ON PRELIMINARY MOTIONS. 137
Mr. Justice Harlan.—That may or may not turn out to be the case.
We may look into it, and may come to the conclusion that it does or
does not interpret the Treaty. Whether that is our conclusion, we
cannot know until we confer among ourselves.
Sir Charles Eussell.—Then, if that be so, I should claim to make
an observation limited to that part of the discussion.
The President.—I think the observation of my learned colleague
goes to giving you leave to reply on the special points you hinted at;
but we must preserve also the right of the opposite party to reply to
your observations within the same limits, of course,—I mean, within
the same limits of time and of substance.
Sir Charles Eussell.—I will confine myself to five minutes, if my
learned friend, Mr. Phelps, will come under the same obligation.
The President.—I do not imagine for a moment that you intend
arguing the case over again; in fact, you specially said that you did
not want to do so and that your observations will be necessarily limited in their nature and, consequently, necessarily limited in their time
which you will require to explain them. And