{"http:\/\/dx.doi.org\/10.14288\/1.0314271":{"https:\/\/open.library.ubc.ca\/terms#identifierAIP":[{"value":"303a3e0f-2df9-42a0-aeff-6990928f0298","type":"literal","lang":"en"}],"http:\/\/www.europeana.eu\/schemas\/edm\/dataProvider":[{"value":"CONTENTdm","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/isReferencedBy":[{"value":"http:\/\/resolve.library.ubc.ca\/cgi-bin\/catsearch?bid=572171","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/isPartOf":[{"value":"British Columbia Historical Books Collection","type":"literal","lang":"en"},{"value":"Fur seal arbitration","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/creator":[{"value":"Bering Sea Tribunal of Arbitration","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/issued":[{"value":"2016-09-14","type":"literal","lang":"en"},{"value":"1895","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/description":[{"value":"\"Fur-seal arbitration. Oral arguments on the motion of the British government for the production by the United States of the report of Henry W. Elliott, and on the motion of the United States for the rejection of the supplementary report of the British commissioners\" -- First page
\"([United States] 53d Cong., 2d sess. Senate. Ex. doc. 177, pts. 1-16)\" -- Lowther, B. J., & Laing, M. (1968). A bibliography of British Columbia: Laying the foundations, 1849-1899. Victoria, BC: University of Victoria, p. 126.","type":"literal","lang":"en"},{"value":"","type":"literal","lang":"en"}],"http:\/\/www.europeana.eu\/schemas\/edm\/aggregatedCHO":[{"value":"https:\/\/open.library.ubc.ca\/collections\/bcbooks\/items\/1.0314271\/source.json","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/extent":[{"value":"149 pages ; 24 cm","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/elements\/1.1\/format":[{"value":"application\/pdf","type":"literal","lang":"en"}],"http:\/\/www.w3.org\/2009\/08\/skos-reference\/skos.html#note":[{"value":" KTJR SEAL ARBITRATION.\nPROCEEDINGS\nTribunal of Arbitration,\nCONVENED AT PARIS\nTREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT\nBRITAIN CONCLUDED AT WASHINGTON FEBRUARY 30, 1893,\nDETERMINATION OF QUESTIONS BETWEEN THE TWO GOVERNMENTS CONCERNING THE JURISDICTIONAL\nRIGHTS OF THE UNITED STATES\nWATERS OF BERING SEA.\nVOLUME XI.\nWASHINGTON:\nGOVERNMENT PRINTING OFFICE.\n1895. 5 3\/S-?- FUR-SEAL ARBITRATION.\nOEAL AKGUMENTS\nTHE MOTION OF THE BEITISH GO VEHEMENT\nPRODUCTION BY THE UNITED STATES OP THE REPORT\nOF HENRY W. ELLIOTT,\nTHE MOTION OF THE TJETTED STATES\nREJECTION OP THE SUPPLEMENTARY REPORT OP\nTHE BRITISH COMMISSIONERS. SESSION OF THE TRIBUNAL OF ARBITRATION.\nSECOND DAY, APRIL 4TH, 1893.\nThe President.--The Tribunal has decided to appoint Mr. A. Bailly-\nBlanchard, and Mr. Cunynghame, as co-Secretaries with Mr. A. Imbert.\nAlso, M. le chevalier Bajnotti, M. Henri Feer, M. le vicomte de Manne-\nVille, as assistant Secretaries and these gentlemen are, therefore, to take\ntheir seats.\nNow, gentlemen, I address both the Agents and I may say that the\nTribunal is ready to hear any motion from either of you or your Counsel.\nIf anybody has a motion to present, the Tribunal are ready* to hear it.\nSir Charles Eussell.\u20141 have, on the part of the Government of Her\nMajesty, to make an application to the Tribunal which is based on Article\n4 of\" the Treaty and also upon the general jurisdiction of this Tribunal to\nregulate tb e order of its proceediu gs. The application is that the repre-\nsentatives of the United States may be called upon to furnish either\nthe original or an authentic copy of an important Eeport bearing upon\nseal 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\nGovernment of the Queen. The Eeport in question is the Eeport of an\nAmerican citizen Mr. H. W. Elliott, and its subject is \" Seal life\".\nIt is important that the Tribunal should understand why we think it\nnecessary that this Eeport should be forthcoming and why we think\nthat the authority of Mr. Elliott on this subject should be brought to\nthe attention of the Tribunal. Mr. Elliott is a gentleman who in the\ndiplomatic correspondence leading up to this Treaty has been vouched\nby successive Ministers of the United States as an authority without\nany equal. Mr. Bayard, when he was Secretary of the United States,\nwriting upon the 7th of February, 1888, describes Mr. Elliott as \"a well\nknown authority on seal life\". That communication is to be found in\nthe United States Appendix to their Case, and I can give my friends\nthe reference, if they have not it at hand. Later, on the 1st of March,\nMr. Blaine, who was then Secretary of State in America, on that date\nquotes Mr. Elliott again, in similar language, as an important authority .\non seal life; and finally on the 3rd of July, 1890, Mr. Goff, Treasury\nAgent to the United States, cites Mr. Elliott in this language. He says\nI There is but one authority on the subject of seal life,\" and he refers to\nMr. Elliott as that one authority.\nNow as to the Eeport, the Eeport which we desire is one which has\npeculiar importance from the fact that the authority of Mr. Elliott to\nmake this special Eeport was conferred upon him by an Act of the\nLegislature of the United States which came into force in April, 1890.\nHe was appointed under a special Act which authorises the Secretary\nof the Treasury to appoint some person well qualified by experience and\neducation a special agent for the purpose of visiting the various trading 4 ARGUMENTS ON PRELIMINARY MOTIONS.\nstations and native settlements on the seal Islands and so forth, for the\npurpose of collecting and reporting to him all possible authentic information upon the present condition of the Seal Fisheries of Alaska and so\nforth. The Tribunal, therefore, cannot fail to see that, if it be within\nthe competence of this Tribunal to acquire possession of .the information which such a Eeport presumably contains, that it is a matter of\nconsiderable importance.\nNow how is this document referred to? The document exists,-and\nthat is not disputed by my learned friends who represent the United\nStates. The report was made conformably to the Statute that I have\ncited a special report to the authorities of the United States, to be found,\ntherefore, among the archives of the department to which it specially\nbelongs. Our information, that is to say, the information of Her Majesty's Government, is and can only be secondhand upon the subject of\nthis Report. Our information is derived from a publication made by\nMr. Elliott, iu which Mr. Elliott himself refers to this Eeport, and that\npublication was made on the 17th of November. 1890, and is set out on\npage 53 of the 3rd part of the Appendix to the Case of Her Majesty's\nGovernment. Here it is referred to as having appeared in the columns\nof an American paper called the \"Cleveland Leader and Morning\nHerald\", of the 4th of May, 1891; and it is there signed or purports to be\nthere signed \" H. W. Elliott.\" lb also purports to be, although so set\nout in the journal which I have mentioned, a copy of a communication\nor part of a copy of a communication purporting to be addressed to the\nHon. William Windom, Secretary to the Treasury. It is, therefore, in\nthe documents before the Tribunal, first referred to in the Case on behalf\nof Her Majesty. It is next referred to in the Counter Case of the United\nStates at page 75; and I rely, and I think it right at once to call the\nattention 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.\nIt is thus referred to. \"The Commissioners\", that is the British\nCommissioners, \"also rely on a Newspaper extract which purports to be\na 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\nstatements in this alleged Summary is that there were 250,000 barren\nfemale 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.\"\nThey then proceed. \" An examination of the Extract as published in\nvol. 3, which is the reference I have given to the Tribunal in the\nAppendix to the case of Great Britain, \" discloses the fact that this\nstatement\", that is to say the statement of figures, \" appears after the\nsignature of H. W. Elliott, and it cannot, therefore, be construed as a\nportion of such report. Furthermore, how the Commissioners can question Mr. Elliott's power to compute the number of seals on the island as\nthey have done, and still rely at all on his computation as to the number of barren seals, needs explanation.\" The Tribunal therefore will\nsee, first of all, the fact of the report is not questioned, but what is\nquestioned is the authenticity of, the correctness of, the extract which\npurports to be given in the paper from which the British Commissioners\nof Her Majesty's Government in their Case cite.\nNow in that state of things Her Majesty's Government considered\nthat it was of moment that the actual report, or an authentic copy of\nit, should be at the disposition of those who advised the Queen, to use\nit as they think right, and to place it before this Tribunal if it throws\nany important light on any part of the discussion in which this ARGUMENTS ON PRELIMINARY MOTIONS. 6\nTribunal is engaged;.and accordingly on the 10th February in the\npreseut year the Agent of Her Majesty's Government addressed a letter\n\u2022 to Mr. Foster, the Agent of the United States, in these terms. It relates\nto several documents, and I will only read that part of it which refers\nto this report. \"The undersigned Agent of Her Britannic Majesty's\nGovernment has the honor, by the direction of Her Majesty's Government, to give notice that he applies for the production by the Agent of\nthe United States of the following documents or copies of the following\ndocuments.\"\u2014And then, under the third head, the document in question is thus described. \"A full copy of the report of Mr. Henry W.\nElliott in 1850 specified and alluded to on page 75 of the United States\nCounter Case\". The answer of Mr. Foster to that demand was made\nin writing on the 16th. February 1893, and referring to the document\nin question (I omit the other parts) this is the answer which the Eepre-\nsentative of the United States thought proper to make. \"The third\ndocument\" (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.\n\"The undersigned begs to make the following statement in relation\nto the document applied for. The reference cited in the notice of the\nAgent of Her Britannic Majesty is in the following words\", And\nthereupon is repeated the passage which I need not trouble you with\nreading again. . It then proceeds: \"The Counter Case of the United\nStates alludes to a newspaper extract, not to Mr. Elliott's Eeport, and\nspecifically to the same as published in the Appendix to the Case of\nHer Majesty's Government.\" The unwarranted construction placed,\nupon the citation by the Agent of Her Britannic Majesty's Government is obvious.\nThe next paper extract to which reference is made, is cited by the\nBritish Commissioners, and therefore, it is to be supposed, is in their\npossession. If not, it can be as readily obtained by Her Majesty's\nGovernment as by the Government of the United States, which has\nnot the same in its own \" exclusive possession\", which is the condition\nprecedent required by Article 4 for the production of any report or\ndocument specified or alluded to. I will come to the construction of\nArticle 4 in a moment. At present I wish to convey to the mind of the\nTribunal what this answer amounts to.\nFirst of all, what does it not amount to? It does not challenge the\nfact that there is an official report in existence made by one specially\ncharged by the United States with the duty of making that report.\nIt does not deny that that report is in existence, and may be made\navailable should this Tribunal see fit so to direct. But what it does\nBay, in effect, is this:\u2014You first referred to this report. You refer to\na newspaper extract. That newspaper extract is not exclusively in\nthe possession of the United States. Your production of it shows that\nit is in your possession, and you have just as good means of getting\nthat newspaper extract as we, the United States. That is their\nanswer. I agree the answer is perfectly correct, as far as the newspaper extract is concerned. It is equally available for both of us; but\nwhat 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\nas a matter of good sense and of equity that we must have that report\nis this; that they have in their reference to that extract challenged\nits correctness, and its authenticity, and have alleged that the statement referred to as a statement of Mr. Elliott is not to be regarded as\na statement of Mr. Elliott, because, as appears in the newspaper 6 ARGUMENTS ON PRELIMINARY MOTIONS.\nextract, it appears to have been written under and not above his signature, and they take the point that upon the construction which they\nare 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\ndocument referred to in the Case or Counter Case shall have been\nshown to have been, or to be, in the exclusive possession of one of the\nparties. 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\njudgment, an unsound interpretation of article 4.\nNow I would ask the attention of the Tribunal while I submit what\nis the true construction of that article. It turns upon the last clause\nof that article, beginning with the words \" If in the Case\". I think\nmy learned friends will probably agree that the earlier part is not\nmaterial or not directly material to the purposes upon which we now\naie engaged. \"If in the Case submitted to the Arbitrators either\nparty shall have specified or alluded to any report or document in its\nown exclusive possession, without annexing a copy, such party shall\nbe bound if the other party thinks proper to, apply for it, to furnish\nthat party with a copy thereof.\" Now I agree that so far as I have\nread 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\nparty.\nBut it is the second branch of this clause upon which I mainly rely.\nIt then proceeds, \" and either party may call upon the other, through\nthe Arbitrators, to produce the originals or certified copies of any\npapers adduced as evidence, giving in each instance notice thereof\nwithin 30 days after delivery of the Case\". The distinction, therefore,\nbetween these two branches of this rule is, I submit to the Tribunal,\nobvious. The first part deals with a document exclusively in the\npossession of one of the parties, and referred to by- such one of the\nparties in the Case submitted. The second branch deals with a much\nwider, and much more important matter. It deals with this, that if\nthere exist in the possession of either party the original documents\nwhich are important in the elucidation of the truth and in arriving at\na proper conclusion upon the facts, then the party who desires to rely\nupon such document shall not be driven to rely upon uncertain, unsafe,\nsecondary evidence, or partial evidence, or extracts from the document\nin question; but that the Tribunal shall have the means of assisting\nthat party in putting before the Tribunal the actual, authentic document itself, or an authentic copy of the document itself. Surely that\nis the reason of the thing.\nLord Hannen.\u2014You have not referred to the words \" adduced as\nevidence\".\nSir Charles Eussell.\u2014I read that.\nLord Hannen.\u2014I know you did.\nSir Charles Ktjssejll.\u2014\" Of any papers adduced as evidence\", I am\ncomin g to that next branch in a moment, but I read the words \" adduced\nas evidence\".\nLord Hannen.\u2014Yes you did.\nSir Charles Eussell.\u2014In this case we have adduced this report as\nevidence. We have cited it in our Commissioners' report. We have\ncited it in the third part of the appendix, page 53, to which I have\nreferred, but that is only what lawyers call secondary evidence of the\nreport. In a court of law, as my learned friends well know, governed\nby strict rules of evidence as they are understood both in America and ARGUMENTS ON PRELIMINARY MOTIONS. 7\nin England, that would not be evidence at all. Therefore before this\nTribunal, not hampered by technical rules of evidence, it is at the best\nonly a secondary class of evidence, and if we had the document admitted\nas it is set out, imperfectly set out, in the documents connected with\nour Case by the United States as authentic and as reliable, the importance of the question would be here comparatively small. Again, I must\nemphasize that which is the important point in this case. On page 75\nand 76 of the Counter Case the United States,\u2014and, as I see, the Members of the Tribunal have not their books at hand for the moment, I\nhad better read it in full beginning at the second paragraph on page\n75,\u2014it reads thus. \"The Commissioners\"\u2014I have read this already,\nbut I will repeat it,\u2014\" also rely on a newspaper extract which purports\nto be a summary of a Eeport made by Mr. Henry W. Elliott in 1890 to\nthe Secretary of the Treasury to establish several alleged facts. One\nof these statements in this alleged summary on Pribiloff Islands in 1890\n(section 382, page 40) is that there were 250,000 barren seals.\"\nThis is cited, by the Commissioners to show the lack of virile males on\nthe rookeries in that year. \"An examination of the extract as pub-\"\n\" lished in Volume 3 of the appendix to the Case of Great Britain dis-\"\n\" closes the fact that this statement appears after the signature of\"\n\" H. W. Elliott, and it cannot, therefore, be construed as a portion of\"\n\"such Eeport. Furthermore, how the Commissioners can question\"\n| Mr. Elliof s power to compute the number of seals on the Islands,\"\n\" as they have done, and still rely upon his computation of the number of\"\n\" barren females, needs explanation.\" Now, paraphrase this paragraph.\nWhen they say the British Commissioners rely on newspaper extracts,\nI ask why should they be called upon to rely upon a newspaper extract\nwhen the authentic document exists and is procurable? Why are the\nUnited States through their Agents to be considered justified, on page\n76, in throwing doubt upon the authenticity of one of the extracts that\nupon the fact that, extract in part does not represent conclusions of Mr.\nElliott and is not part of his report, when the point can be determined\nnot by conjecture or speculation, but by examination of the actual\ndocuments in the possession of the United States itself? I find great\ndifficulty, and I say it with all sincerity, in appreciating why it is that\nthis document, which owes its origin to a solemn Act of the Legislature\nof the United States, should raise what I must, quite respectfully, call\nthe very narrow and very technical objections to this document which\nare stated in the answer to the application for the document by the .\nAgent for the United States. I base my application, therefore, upon\nthese grounds:\u2014First of all, that we ought not to be driven to rely\nupon secondary evidence of a document the original being in the possession and under the control of the representatives of the Government\nof the United States; next, that it is within the terms of Article 4, that\nthis Tribunal should not compel us to rely upon secondary evidence, but\nmay, for their own information and for ours, direct the production of\nthe original or an authentic copy. I say the power is conferred upon\nthis Tribunal under article 4 in the second clause, which I have read;\nbut I say, if there were no such Article at all and even in face of that\nArticle, this Tribunal surely has the right to call for, for the better\ninformation of its own judgment, and surely has, inherent in itself, as\na Tribunal to determine difficult and somewhat complicated issues, a\nright 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\nthe United States itself for the very purpose of informing those who 8 ARGUMENTS ON PRELIMINARY MOTIONS.\nare advising the Government of the United States on the very questions dealt with or largely dealt with in the controversy now before this\nTribunal. These are the grounds upon which I submit that we are\nentitled to have this document; and I cannot doubt that if the Tribunal\n-or any portion of the Tribunal express its opinion (and I cannot doubt\nthat it must be in the minds of many of them) that it is but reasonable\nand right that this document should be forthcoming and be judged\naccording to its merits by each member of this Tribunal, I cannot doubt\nbut that further objection to its production will be withdrawn.\nThe President.\u2014I would ask Sir Charles Eussell to be kind enough\nto put his motion in writing and communicate it to the Secretary of the\nTribunal, so that we may have the exact words of the motion before us.\nSir Charles Eussell.\u2014Certainly.\nSir Eichard Webster.\u2014I ask to be permitted, Sir, not to repeat, but\nto supplement, the argument of my learned friend the Attorney General\nby a reference to one or two other documents in evidence which strongly\nenforce, in my respectful submission, his contention. You are aware\nthat by Article 3 of the Treaty the printed Case of each of the two\nparties, accompanied by the documents, the official correspondence, and\nother evidence on which each relies, shall be delivered in duplicate; and\nyou are further aware, Sir, that by the earlier clause of Article 4, within\n3 months after delivery on both sides of the printed Case, each party\nmay in like manner deliver in duplicate to each of the Arbitrators, and.\nto the agent of the other party, a Counter Case, and additional documents,, correspondence, and evidence, in reply to the Case, documents\nand evidence, so presented by the other party\". My learned friend, the\nAttorney General, has called the attention of the Tribunal to the fact\nthat in the Appendix to the original British Case lodged in September\nlast, 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\nof part, and but of part only, of his Eeport.\nNow, Sir, comes the additional matter to which I respectfully call the\ncareful attention of this Tribunal. A difference having arisen between\nthe United States and Great Britain as to the true construction of the\nTreaty, Mr. Foster asked that some further documents should be supplied (I am stating this of course in a very few words) and accordingly\nit was by arrangement, which will be found in the letters of Mr. Foster\ni 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\nthe United States, that the report of the British Commissioners should\nbe treated as part of the Case of the Government of Her Britannic\nMajesty. I need not now, Sir, discuss the merits of that dispute. I\nwill merely say that the Government of Her Britannic Majesty, in furtherance of the desire that this Arbitration should be conducted with\nthe fullest information on both sides, accepted the view put forward by\nMr. Foster on behalf of the Government of the United States that the\nEeport of the British Commissioners should be furnished, and should\nbe treated as part of the Case of the Government of Her Britannic\nMajesty. In that Eeport, with which I know the Tribunal are familiar,\nin sections 433 and 832, the Eeport of Mr. Elliott is referred to in supporting certain statements of fact upon which the British Commissioners\nrelied. We had at that time therefore before us, Sir, what I may call\nthree separate allegations of fact all based upon that, which we had\nreason to believe was an authentic extract from Mr. Elliott's Eeport,\nit having been signed by himself and being sufficient for our purpose. ARGUMENTS ON PRELIMINARY MOTIONS. 9\nHad the matter stood there it might have been suggested that that was\nall we wanted; but the United States, by their criticism, to which the\nAttorney General has called attention, submit to this Tribunal, that it\nis to reject part of the secondary evidence which has been put forward\nby Her Majesty's Government, upon the ground that upon the face of\nthe newspaper account of the Eeport it was to be presumed that in this\nrespect it was not trustworthy; and I beg the Tribunal to notice, that\nthe Government of the United States had in their possession at that\nmoment the original report addressed to the Secretary of the Treasury.\nNow I need not again enforce what the learned Attorney General has\nsaid on the criticism of the United States with reference to allegations\nmade on behalf of Great Britain, but I now again call the attention of\nthe 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\nthe Tribunal consider that it is material or pertinent to the matter before\nit; and I again remind this Tribunal that it is a rule not only of this,\nbut 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\nin the event of the failure of their being able to obtain the best evidence\nthat secondary evidence becomes either reasonable, or such as the Tribunal should rely upon.\nMr. Justice Harlan.\u2014Does your motion comprehend the filing of\nthis paper as evidence?\nSir Eichard Webster.\u2014My motion, Sir, comprehends the production of this paper, so that the original may be referred to by either side,\nand certainly by the Counsel for Great Britain, as the best evidence\u2014\nas the evidence of the Eeport which Mr. Elliott made, which we have\nalready referred to in our Appendix. It is already in evidence; we have\nreferred to it in our Appendix; it has been treated by the United States\nin their Counter-Case as evidence; it is criticized upon the ground that\nit is evidence, but it is said that a part of it you must reject, because it\nhappens 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\nof the original Eeport there are the same figures which are referred to\nafter the signature in the extract given to us, my learned friends who\nrepresent the United States would be the first to admit, that if those\nfigures were there they would not rely upon the accidental circumstance\nthat in the particular form in which they were cited by the paper they\ndo not appear, but that they are in the body of the Eeport to which\nreference has to be made. I again respectfully press upon this Tribunal\nthat, 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\nto legal or conveyancing documents, it is evident that if either party\nrefers in evidence to documents, the originals of which they have not\ngot 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\nwhose custody the original document is. Supposing it happened that\nthis was a document which the United States desired to produce or give\nin evidence, it would be no answer for us to say, \"You have got some\nmeans of referring to the contents of that document\"; the Treaty has\nrequired the Tribunal and has enabled the Tribunal in its discretion to\ncall for originals which form part of the evidence adduced by either party.\nSir, I have but one more word to add. It is, in fact, alluded to in the\nsense of the Treaty even by the United States themselves, because they\ndo not speak of it as merely a newspaper report of something which\nMr. Elliott is supposed to have said. They refer to it as a newspaper 10\nARGUMENTS ON PRELIMINARY MOTIONS.\nextract which purports to be a summary of a report made by Mr. H. W.\nElliott to the Secretary of the Treasury. Therefore we respectfully\nsubmit to this tribunal that upon first principles which govern the laws\nof evidence, in the broadest sense of the term, an original document\nwhich has been alluded to by the party desiring to refer to it, which\nhas been made part of their evidence by the original Case and by that\nwhich upon the invitation of the United States was to be treated as part\nof the original Case\u2014the original of that document, we humbly submit to this Tribunal, must be produced; and we further poiut out that\nit could scarcely be contended that because the only means accessible\nto us happened to be in the first instance a newspaper extract from that\nreport, therefore we should be denied access to the original.\nSir Charles Eussell.\u2014The form of the Order, sir, which I should\nsuggest that this Tribunal should make and which we request that they\nshould make, is this, that the Agent of the United States be called upon\nby the Tribunal to produce the original or a certified copy of the Eeport\nmade by Mr. Henry W. Elliott on the subject of the fur seals, pursuant\nto the Act of Congress of 1890.\nThe President.\u2014Have the United States anything to reply to this\nMotion?\nMr. Phelps.\u2014The disposition, Mr. President, which we shall propose\nto make of this application relieves us from the necessity of troubling\nyou long upon the subject of its admissibility. The circumstances however that attend, and have heretofore attended this application, and one\nwhich preceded it, are such that we have not thought it right to allow\nthe subject to pass without au explanation to the Tribunal of the attitude\nof the United States upon this subject, because it bears collaterally, in a\nvery important way as we conceive, upon other questions that the Tribunal will hereafter encounter. Now, to begin with, I do not preceive\nthat the remark of my learned friend as to the value of this evidence, is\ngermane to this enquiry. The question is not upon its weight, but on\nits admissibility. If it were ever so valuable, if not admissible it is not\nto be admitted. If it were comparatively of no value at all, if it be\nadmissible they are entitled to have it in evidence. Another observation of my learned friend, Sir Charles Eussell, to which possibly I\nattach more consequence than he did, is on the subject of what he\nterms the general jurisdiction of this Tribunal. On these questions of\nprocedure we respectfully deny that under the Treaty the Tribunal is\ninvested with any such jurisdiction. If you were sitting as a Court,\na court of general judicial powers, the incidental discretion that would\nattend the Tribunal, as we all know, is very large. The Treaty might\nhave invested this Tribunal with such discretion and such powers. It\nhas failed to do it. It has undertaken to specify with great certainty\nand particularity the method of precedure in bringing before the Tribunal the evidence which they are entitled to consider. I do not\nenlarge upon this point now, as it will become the subject of discussion\nin a subsequent motion. I only make the observation, that it may not\nbe thought that we concur at all in the idea that this high Tribunal is\ninvested with any power to admit evidence, or consider evidence, except\nprecisely that which is conferred upon them by the Treaty under which\nthey are constituted.\nIt 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\nproduction of this document, and it was refused upon the ground\nwhich he has read to the Tribunal; refused upon a further ground\nstated later in the letter of the agent, which he has not read. It is ARGUMENTS ON PRELIMINARY MOTIONS. 11\nonly so far as may be necessary to justify the position of the United\nStates Government on this subject, that I shall trouble the Tribunal\nwith any remarks. If this document is admissible, it is made so by the\nlast paragraph of article 4 of the Treaty, the only one which has any\nreference whatever to the subject. \"If in the Case submitted to the\nArbitrators either party shall have specified or alluded to any report\nor document in its own exclusive possession, without annexing a copy,\nsuch party shall be bound, if the other party thinks proper to apply for\nit, to furnish that party with a copy thereof\". That is the first half of\nthe paragraph. I shall consider the other further on. It will be\nobserved that the language of this provision is restricted to the Case\nthat has been furnished by either party; not to the Countercase, which\nis a very different document. Article the third, as has been already\npointed out, provides for the delivery in duplicate by each party to the\nother and to the Arbitrators, at a particular time, of a Case. Article\n4 provides for the subsequent delivery by each party to the other, and\nto the Arbitrators of a Countercase. Both words are used throughout\nthe Treaty. Each has its own meaning, and its own application. It\nis not claimed on the part of my learned friends that any allusion to\nthis document whatever on either side took place in the Case, certainly\nnot our side; and I believe not on theirs. It is in the Counter Case\nthat the allusion is made, which appears to them to lay the foundation\nfor an application for the document.\nNow, 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\"\nin this connection as including the entire submission by the party of\nhis allegations and evidence. The difficulty with that construction is\nthat what comes in in the Counter Case cannot be subject, under the\nterms of the Treaty, to any reply, contradiction or explanation. The\nTreaty closes the door, on the delivery of the Counter Case, to the\nadmission of any evidence whatever upon any subject; so that while\nif a document is so far alluded to in the case of a party as to make it\nproperly the subject of an application for the whole document, so that\nthe. party applying for it can in his Counter Case make the proper reply\nby 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\nproduction of a document which is alluded to for the first time in the\nCounter Case, then that document which comes in as evidence for all\npurposes for which it may be legitimately used, cannot be answered\non the other side. That is the reason; and. that is one of the reasons\nassigned by the Agent of the United States in the latter part of the\nletter which my learned friend has read as one of the grounds upon\nwhich this application is declined.\nBut, to go farther, suppose for the purposes of argument that the\nword \"Case \"here includes the Counter Case; what sort of an allusion\nor specification is it which the Treaty requires as the foundation for an\napplication for such a document?\nSenator Morgan.\u2014Is there no allusion to this paper in the British\nCase?\nSir Charles Eussell.\u2014Certainly there is, atpage53of the Appendix.\nMr, Phelps.\u2014There is none in ours, and I had the impression there\nwas not in theirs. But that is immaterial, because, as I am going to\npoint 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\nthe 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.\neither party shall have specified or alluded to any Eeport in its own\nexclusive possession without annexing a copy,\" what is the meaning of\nthat? It is that if either party shall have brought forward by specification or by allusion any document in support of any contention and\nhas relied upon it, and has put it forward so that his Case is in any\nrespect strengthened by the allusion, then at the instance of the other\nside he shall produce the full copy of the document he refers to. And\nthat provision is founded in the greatest and most obvious propriety.\nBut is a reference to a document in the Counter Case in reply to a part\nof it that has been brought forward on the other side, such an allusion\nas the Treaty contemplates ? It is difficult to read these words without\nperceiving what the spirit and object of the provision is, that a party\nshall not be permitted to fortify himself in any way by a reference to a\nwritten document in his own exclusive possession, without giving the\nother side (if they ask for it) the benefit of the entire contents. But\nwhen the other side thinks proper to allude to some copy or extract in\ntheir own possession out of a newspaper and a reply is made to that in\nthe Counter Case saying that it is not authority or is not material, have\nwe brought forward the Eeport as in any way assisting the case of the\nUnited States? I do not press the subject, because it is immaterial.\nI have said thus much in order to state the justification which we think\nexisted, 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\nbased upon a technical ground, although, the technical ground is well\nfounded correct, I may be permitted to say that this Case will not proceed very far, in my judgment, without disclosing that we should have\nbeen perfectly justified, and are perfectly justified, in standing upon\nany ground in respect to the admissibility of evidence, whether it is\ntechnical or not.\nA subsequent contention of my learned friend is, under the latter\nclause of this Article, that either party may call upon the other through\nthe Arbitrators to produce the originals or certified copies of any papers\nadduced 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?\nWhere a document is in the exclusive possession of one side, under the\nrules of law that prevail in England and in America, before secondary\nevidence of it can be given by the other, notice to produce it must be\ngiven. If that notice is not complied with, the secondary evidence\nbecomes primary evidence, and is admissible. In some jurisdictions,\nthere 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\nor in America that justifies a party in calling upon his adversary to\nproduce a document, I mean to compel his adversary to produce a document, because he has referred to it as part of his Case.\nNow 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.\nIt will be seen therefore that there has been no disposition on the part\nof the United States Government to withhold or to conceal it; and the\nfoundation of the objection which we conceive to be an unanswerable\none upon the terms of this Treaty to being compelled to produce it, was '\nthe fact that, if produced, it came in as it comes in now, too late to be\nmet by the proper reply. ARGUMENTS ON PRELIMINARY MOTIONS. 13\nI shall not follow my learned friend in remarking upon the value of\nthis 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\nwhether 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\nit has not been withheld from the Commissioners, that it would not\nhave been withheld from the other side if it had been asked for in time\nto prepare a reply; that it was refused because being a document of\ngreat volume and extent, it would have come in too late to have been\nmet by the explanation and the evidence which we think should accompany it.\nNow, having said all this, Sir, let me say that we shall produce the\ndocument, and give our learned friends the benefit of it, with the understanding, which I assume to be, from the language of my friend, Sir\nEichard Webster, satisfactory to them, that it comes in as evidence for\nthe benefit of either party.\nSenator Morgan.\u2014Mr. Phelps, do you think that the Counsel in this\nCase before this Tribunal, by an agreement amongst themselves can, at\nthis hour, bring evidence into this cause?\nMr. Phelps.\u2014I was going to remark upon that, Sir, in a moment.\nI do not think, as I shall have occasion to say at greater length, that\nthere is any power to bring evidence into this case at this stage. But\nwe do not choose to stand\u2014we prefer that the Government of the\nUnited States should not stand in this enquiry, subject to the reproach\nof having attempted to withdraw or withhold or stifle anything that\nthrows any light upon the subject. The conduct of the whole case I\nmay respectfully submit, as it will sufficiently appear in due time, has\nbeen the other way.\nSenator Morgan.\u2014But how can the tribunal give its consent to\nexceed its powers merely for the purpose of preventing incrimination\nor recrimination between the Governments by their counsel in debate?\nMr. Phelps.\u2014That will be a question entirely for the disposition of\nthe Tribunal. We are making no admission that binds the Tribunal.\nWe are making a concession that binds only ourselves. We say that\nif 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\nmust be understood, and that is the object of these remarks, that we\nin no respect concede what, before the day is over, we shall be called\nupon to deny most emphatically\u2014the right of a party to introduce any\nevidence\u2014any further evidence\u2014at this stage or any future stage of\nthe 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\npermit 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.\nMr. Justice Harlan.\u2014It can be lodged, then, as evidence to be used\nby either party, subject to the judgment of the Tribunal, when they\nlook into it, as to their power to use it.\nMr. Phelps.\u2014Certainly, Sir, we are not presuming to suggest to the\nTribunal what use they shall think proper to make of this^^ument\nwhen it comes before them; that is for them to consider. 1 w\nSenator Morgan.\u2014Does the same argument apply to that part of the\nBritish Case which Counsel have alluded to, which came in after the\nCase had been placed in the hands of the Arbitrators?\nLord Hannen.\u2014That is a different question. That depends on other\nelements. j*.\u00bbe-3$r 14\nARGUMENTS ON PRELIMINARY MOTIONS.\nMr. Phelps.\u2014That is a question which will come up later.\nSenator Morgan.\u2014That was referred to and as a case analogous to\nthis, and an authority on this question.\nMr. Phelps.\u2014That will come up later, under other motions, for discussion, but as the question has been put by the learned Arbitrator, I\nmay say that in our judgment no such evidence can be properly considered. That will be our position when we reach that question. All I\ndesire to say now is that, without conceding, and emphatically denying\nthat the terms of this Treaty entitle Her Majesty's Government to call\nfor this document, we prefer to consent to put it in evidence, with the\nunderstanding that, if used at all it is open to both sides, leaving it to\nthe Tribunal to attach such value to it, and to make such use of it as\nthey may deem proper. The whole subject, let me say in conclusion, of\nthe time and manner in which evidence not in reply can be brought\nbefore the Tribunal, will come up later and will come up all the way\nthrough the discussion of this case.\nMr. Carter.\u2014Mr. President and gentlemen, in respect to this particular paper there is not, it seems to me, very much importance in this\ndiscussion, and I quite concur with my learned associate in his manner\nof dealing with it; but in respect to our views as to the powers of this\nTribunal there is a great deal of importance, and it seems to me that\nany discussion concerning them, whenever it is brought forward, should\nbe conducted with deliberation, and nothing should be taken for granted.\nI am moved to add one or two observations here, solely in consequence of some remarks which were made by our learned friends upon\nthe other side. The first of them which attracted my attention was\nthat 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,\nand the grounds upon which that refusal was placed, seemed to exhibit\na very narrow interpretation of the provisions of the Treaty, and of the\nnecessities of the controversy, and also exhibited a disposition to rely\nupon technical considerations.\nIf the object was to indicate that the United States, in their dealing\nwith this controversy generally had been at all disposed to withdraw\nfrom 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\nan imputation would be wholly erroneous. It is our belief that the\nGovernment of the United States, at every step during the pendency of\nthis controversy, has exhibited the largest and most liberal spirit in\nreference to the production of evidence which would be pertinent to the\nmerits. If there was any facility which it peculiarly enjoyed for the\nascertainment of truth, it has been ready, I think, from the start to\nfurnish it to the Government of Great Britain. My learned friends\nupon the other side will remember, and the Tribunal must be aware\nfrom the case which has been laid before ifc, and the papers contained\nin it, that at the very outset the Pribiloff Islands, which are the arena\nout of which the controversy arose, were freely thrown open to the\ninspection of Her Majesty's agents. A special agent was allowed to go\nout there for the purpose of making enquiries, and for the purpose of\ngatherup evidence which it might be useful for Her Majesty's Government Wmcorporate into the Case which was to be submitted to the\nTribunal. If there was any knowledge in reference to the habits of the\nseal to be gathered from that Island, if there was any information in\nreference to the industijpcarried on upon that Island which might be of\nany sort of use to Her Majesty's Government, it was freely thrown open.\nI think the same course has been pursued in reference to documentary ARGUMENTS ON PRELIMINARY MOTIONS. 15\nevidence which might be supposed to be in our exclusive possession. I\nthink it will be admitted upon the other side that they have from time\nto time called for documents to which perhaps they were not entitled\nunder the provisions of the Treaty, and which were yet freely thrown\nopen to them; but I make this observation for the purpose of showing\nthat there has been at no time on the part of the United States any\ndisposition to withhold from this Tribunal, or to withhold from the\nother side, any evidence pertinent to the merits of the controversy.\nWe did, however, refuse to furnish this report. And why? The\nTribunal must have perceived already that there is something peculiar\nabout this report. I may assume that the Tribunal is familiar with the\npractice of Governments to print and publish important reports and\ndocuments\u2014reports which have been made pursuant to provisions of\nlaw. If Commissioners are appointed for the purpose of making enquiries\u2014(appointed by a legislative body\u2014our Congress for. instance)\u2014\ntheir report is, in the ordinary course of things, published and made\nknown to the world. It already appears as a fact that this was not the\ncase with regard to this particular document. Her Majesty's agent\nfound 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\nobtain it at that time. Therefore, there is something peculiar about\nthis report. What is that? Well, I am not at liberty to say, because\nthe evidence for it is not furnished by the Case; but I am at liberty to\nsay what well may have been the case,\u2014it may have been a report\nwhich the Congress of the United States that authorised the investigation which led to it conceived to be wholly erroneous, wholly unworthy\nof credit, unworthy of publication, unworthy of adoption. It may\nhave been of that character. It may have been a report which, in the\njudgment of the Congress of the United States, was inspired by bad\nmotives, and, therefore, not to be made public. It may have been a\nreport which, in their judgment, was inspired by motives hostile to the\ninterests of the United States, and hostile to their management upon\nthe Islands, and for that reason, therefore, not to be published. All\nthese facts, or some one of them may have been true, or may not have\nbeen true. Something was true about it\u2014which led to the withholding\nof that report from the ordinary treatment which is accorded to documents of that character; and that too, long before this controversy\narose. Nevertheless, when the British Commissioners were in the\nUnited States for the purpose of making their investigation, they\nwished to have access to that report. It was freely thrown open to\nthem:\u2014They were told \" Look at it if you please.\" It was not withheld. No demand, after the Treaty was framed and in the course of\nthe preparation by the respective parties of the Cases and Counter-\ncases\u2014no request;\u2014was made to the Government of the United States\nfor the production of that report or for furnishing a copy of it to the\nother side to the end that they might incorporate it in the Case if they\npleased. If such a request as that had been made, the United States\ncould have said in answer to it, \" Yes, we will give you the report, but\nyou must take it in connection with some explanatory matter which we\nwill furnish with it. There are reasons why this report has not been\nmade public, and if the report is now to be placed before the public we\nwish to have also placed before the public the reasons which go to\nexplain it.\" That course was not taken. On the contrary, the agent\nof Her Majesty's Government having incorporated into the British case\nwhat purported to be some extracts from it printed in a newspaper,\nand the United States in the preparation of its Counter .case being 16 ARGUMENTS ON PRELIMINARY MOTIONS.\ncalled upon to refer to the allusion which had thus been made in the\nBritish Case to this document, he then serves a written demand upon\nthe agent of the United States that he furnish him with that document\nas a matter of right.\nWell, what if that had been cpmplied with? Why then the Govern-\nment of Great Britain would have succeeded in obtaining this document, peculiar in its nature, without those explanatory circumstances\nwhich ought to have accompanied it, which explanatory circumstances\nthe United States would have had no means of placing before the Tribunal. It seemed therefore to be a proper occasion to look into the\nTreaty, and see what the provision relied upon for this demand was,\nand whether it authorised the demand or not.\nNow it seems to me, upon looking at the provisions of the Treaty,\nthat it is quite plain that no such demand on the part of the British\nGovernment was authorised. The provision of the 4th article is this:\n\" If in the case submitted to the Arbitrators either party shall have\nspecified or alluded to any Eeport or document in its own exclusive\npossession without annexing a copy, such party shall be bound, if the\nother party thinks proper to apply for it, to furnish that party with a\ncopy thereof.\" That is the first provision. Well what is the object of\nthat? 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\nseems very plain. Nothing is more common in judicial proceedings\nthan 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\ninstruments\u2014not to use the whole of it, but to use a part of ii;\u2014such\npart of it as he supposes to favor his own contention, aud he does not\ntell his adversary what the rest of it is. Well naturally-his adversary\nsays, I How do I know but that there may not be something in the\ninstrument which favors my contention, or goes to qualify the inference which the party who has made use of an extract from it wishes to\ndraw from it\"; and, therefore, the law usually furnishes a mode by\nwhich, when a part of an instrument has so been used, the production\nof the whole of it may be compelled by the adverse party. It is the\ncase of a partial use of an instrument. Let me again read this language of the Treaty: \"If in the case submitted to the Arbitrators\neither party shall have specified or alluded to any Eeport or document\nin its own exclusive possession, without annexing a copy, such party\nshall 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,\nas the members of the Tribunal will perceive, when he comes to make\nup his counter case to put in the rest of the document of which his\nadversary has made a partial use, in his counter case or such part of it\nas 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.\nNow the Tribunal will perceive the reason why this provision is\nrestricted to the instance where a party has specified or alluded to a\ndocument in his case. It is to enable the other party to get the rest of\nthe document, to the end that he may put it in evidence when he comes\nto make up his counter case. If the allusion is made in the counter\ncase 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\nby this Treaty for the introduction of evidence before the Tribunal.\nI think, therefore, it is quite plain from this explanation of the\narticle in question that the only instance to which it applies is where ARGUMENTS ON PRELIMINARY MOTIONS\ni made an allusion to a document, and (if \u25a0\nit means where he has made a partial use i\nnotice thereof within thirty days after delivery of the case; and the\noriginal or copy so requested shall be delivered as soon as may be, and\nwithin a period not exceeding forty days after receipt of notice.\" I\nwill not stop at this moment to comment upon the rather clumsy limn -\nprovision in the treaty which constituted the Geneva Tribunal of\nArbitration; and if there were any attempt to really enforce it, it would\nbe found perhaps somewhat difflcnlt to construeits particular terms; but\nas to its spirit and purpose, its real object and meaning, I think that is\napparent upon the face of the provision,\u2014\" either party may call upon\nthe other, through the Arbitrators, to produce the originals or certified\ncopies of any papers adduced as evidence\". Now that refers to the\ncase where a paper is adduced in evidence\u2014the whole of it. In such\ncase the other party, as is often the case in judicial proceedings, may\nhave some doubt as to the authenticity of the document,\u2014he may have\ndoubts about that; and, if he has, it is fair that those doubts should be\nsatisfied, and this provision is one for the removing of such doubts. It\nis an obligation on the party who puts a paper in evidence,\u2014the whole\nof a paper,\u2014to furnish to the other party the original or a certified copy\nof it to the end that the latter may be satisfied of its authenticity. That\nis the provision.\nNow does this case fall within the first of the categories mentioned?\nPlainly 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\nanywhere or contained anywhere, is in the counter case of the United\nStates; and that is a case not provided for by the terms of the Treaty,\u2014\nnot within its letter, and not, as I have endeavoured to explain to you,\nwithin its spirit or purpose. That is the first difficulty, and it is an\niusuperable one, in bringing this motion within the first clause of the\nparagraph in question.\nBut there is another difficulty. I have said that it is not alluded to\nin our Case but in our Counter Case, if at all. But we have not alluded\nto it there unless when, perchance, a document is mentioned in any way\nor 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\nips\npo\n; and, of course, if it was a document\n\u2022 Majesty's Government, there would t\nBrit\nStat\nthe\nain aIIu(\nes allude\nReport b\nto that\nto it at\ny Great!\nallusion.\nher Case. Did\nall! No; they a\nritain. They mi\nEs that making a\nthe Go\nsens\nvery\n6p\u00b0ain th\nB S, P\nTreaty bj\nat it is nol\nr xi 2\nthe Governmen\n. All that the I\nt of th\n-'nited 18\nARGUMENTS ON PRELIMINARY MOTIONS.\nment upon an allusion made by the Government of Great Britain\u2014that\nis all. If a different interpretation could be put upon the terms of the\nTreaty, a party would be precluded from denying, qualifying or criticising an assertion of his adversary which contained an allusion to a\nEeport without subjecting himself to the obligation to produce that\nEeport if it was in his exclusive possession; therefore I conceive it\nquite plain that it does not come within the first clause.\nIt does not come within the second, certainly. It has been argued\nby our learned friends on the other side, that the second branch of the\nclause of the treaty furnishes a means by which this Tribunal may be\nsupposed to be clothed with a certain general jurisdiction and authority\nto compel the production of documentary, or other evidence, whenever\nin its judgment it is necessary for the purpose of determining the truth.\nI have no desire whatever to restrict within narrow limits the authority\nof this Tribunal, but we must regard the terms of this Treaty and we\nmust adhere substantially to those, otherwise we shall be very speedily\nat sea and without a rudder or compass. It is, we are all aware, a\ncommon incident of ordinary municipal Courts of Justice, that they\nhave an incidental power over the parties to the controversies which\nare brought before them, to compel such parties from time to time to\ndo such acts and things in the way of furnishing evidence, copies of\npapers,' documents and so forth, as may be supposed to be necessary\nto the administration of justice in the cases before them. In such\ncases the parties are private individuals. The Tribunal before which\nthey appear represents, and is clothed with, the sovereign power of the\nState and can do with them as it pleases. That is not the case here.\nThis Tribunal is one specially constituted and clothed with such\npowers as are specially mentioned in the Treaty, and with no others.\nThe parties who appear before it are not private individuals subject to\nits authority; they are themselves sovereign states which cannot be\ncompelled. You have no sheriff or other officer at your hand that can\ncompel the action of the parties which are before you, and therefore\nthis suggestion that there is a general jurisdiction in this Tribunal to\norder the parties to do what it may be supposed proper to do is one\nwhich I conceive has no just foundation, and one which cannot be\naccepted in any degree without leading us into difficulties which it\nwould be impossible for us to find our way out of. We must look to\nthe Treaty for the powers of the Tribunal, and where the powers contained by the Treaty stop, the powers of this Tribunal stop also. My\nconclusion from this is that we must dispose of this demand, which is\nnow put upon the second branch of the arlicle, according to the language of the Treaty. I have already explained what seems to me to\nbe its plain and manifest purpose. It is to enable one party to call\nupon the other party who has put a paper in evidence to satisfy him\nas to its authenticity by producing the original. We do not fall\nwithin that category; we have not put this Eeport in evidence. We\nhave made no allusion to it even, and therefore the United States cannot be called upon under that clause of the article to produce it.\nNow, I have thought it proper to state my views iu relation to this,\nnot because of the importance of this particular paper, but because it\nis important that just views should be entertained of the powers of the\nTribunal at the very outset of its deliberations. Having said that, I\nentirely concur with my learned friend that it is not worth while for the\nUnited States to withhold this paper. It is not worth while. About\nits weight, its importance in this controversy, commented upon to some\nextent by our learned frjends on the other side, I will say nothing. If ARGUMENTS ON PRELIMINARY MOTIONS. 19\nit happens to get before this Tribunal, it will be subject to our comments\nand our criticism; and we are quite prepared to make them. We do\nnot conceive it to be worth while to withhold this papeu, and give any\nsort of occasion or foundation for a remark to be made now and repeated\nhereafter, that here is some very important document full of convincing\nevidence, if the United States only chose to let it come out. We prefer\nto waive it, and to remove the occasion for all such discussion as that\nby 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\nitself to decide; and that question has quite extended considerations,\nwhich I will not now anticipate, but which will be brought forward\nspeedily in the course of the motions which it has become the duty of\nthe Agent of the United States to make; and, with these observations,\nI will defer any other remarks until those Motions are brought on.\nThe President. We ask you to put into writing the purport of your\nreply, as we asked the British Government to state on paper their\nMotion. So will you be so kind as to put on paper the substance of\nyour reply.\nMr. Carter.\u2014Does the President mean by that the substance of the\nargument?\nThe President.\u2014No, the substance of the reply.\nMr. Phelps.\u2014That shall be done.\nThe President.\u2014If you will kindly give it to us categorically, we\nshall see exactly what are the two contending Motions.\nSir Charles Eussell.\u2014Sir, I should have thought that this discussion might have been a much briefer one after the statement made by\nmy learned friend, Mr. Phelps, in his very clear argument. His positions were two. He first contended that the Agent the United States\nwas justified in withholding the production of this document, and upon\ngrounds which would put it out of the power of this Tribunal to order\nits production. That was his first position. His second position was\nthat he was willing to waive any objection and to allow the document\nto go before the Tribunal, leaving the Tribunal to attach such weight to\n, 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\ntroubled the Tribunal with any reply at all'. But my learned friends\nhave thought it right, and it would not be becoming in me to suggest\nthat therein they were wrong, to branch out into a number of collateral\ntopics, which I respectfully submit are not germane to the particular\npoint which is now before this Tribunal. But before I say a word or\ntwo about those topics, I should like to be permitted respectfully to\nobserve upon a view of this position suggested by a question addressed\nby one of the Tribunal to the Counsel when arguing the case of the\nUnited States, namely, the question whether it was competent for Counsel by agreement at this stage to bring in any fresh evidence. That\nwas the purport of the question. Now, as that question, as I conceive,\ninvolves a mistake of fact, I wish to remind the Tribunal again how\nthis 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\nbeen suggested or supposed, the first introduction as evidence of the\nEeport 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\nGovernment. In the Appendix to that Case,\u2014I have given the Tribunal already the reference\u2014Volume 3, page 53,\u2014this Eeport is referred\nto, and, therefore, is in evidence,\u2014to use the words of the Member of\nthe Tribunal, is already \"adduced in evidence\" as part of the case on\nbehalf of Her Majesty's Government. 20 ARGUMENTS ON PRELIMINARY MOTIONS.\nMr. Justice Harlan.\u2014Have you got the page of the case of the\nBritish Government which refers to that Appendix?\nSir Charles Eussell.\u2014I do not know that there is a reference in\nthe case to the particular page.\nMr. Justice Harlan.\u2014I suppose it comes in under the general evidence filed with the case.\nSir Charles Eussell.\u2014In the Appendix, yes. That is the way,\nSir, in which it comes in, and on that page there is given, first of all,\nwhat purports to be a portion of a leader, a newspaper article, copied\nfrom the journal to which I have referred, the Cleveland Journal; and\nthen follows what purports to be a part of Mr. Elliott's Eeport.\nMr. Carter.\u2014Mr. Attorney, will you give me the place where, as you\nsay, the Eeport is itself put in evidence\u2014adduced in evidence?\nSir Charles Eussell.\u2014My learned friend did not hear my answer\ncorrectly.\nMr. Carter.\u2014I am afraid not.\nSir Charles Eussell.\u2014There is no special reference in the case to\nthis any more than there is a special reference to the hundred and one\ndocuments which are referred to here, but all of the documents in the\nAppendix are put forward as proof in support of the case on behalf of\nthe Queen. Now, that being so, we have a further step to shew, that\nit is adduced in evidence,\u2014imperfectly adduced because we have not\nthe original document,\u2014in part produced because we have not the whole\ndocument. It is further referred to in the British Commissioners' Eeport\nat page 77.\nSenator Morgan.\u2014The original Eeport or the supplemental Eeport?\nSir Charles Eussell.\u2014The original Eeport. We have not yet got,\nSir, to the question of the supplemental Eeport of the British Commissioners, which is a distinct subject which my learned friends on the\nother side have given us notice they intend to bring before this Tribunal and seek to exclude.\nSenator Morgan.\u2014I have not read that paper, and therefore I made\nthe enquiry.\nSir Charles Eussell.\u2014I am speaking, Sir, of the original report,\nand I wish to remind the Arbitrators how this matter stood. I do not\nwant to anticipate the subject of a later motion at all\u2014that would be\nirregular, but it was the view Her Majesty's Government took rightly\nor wrongly (that we shall consider hereafter) that anything which bore\nupon the question of regulations ought not to form part of the original\nCase 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\ndeference to their view and expressed desire we furnished them with, as\npart of our original Case, that report of the British Commissioners, and\nas the Agent of the United States and as my learned friends will recollect that was the subject matter of diplomatic correspondence which is\nset out in the documents, the result of which, shortly, was that the\nGovernment of the Queen standing by the view which they took of what\nthe Treaty contemplated, said they did not regard the Commissioners'\nreport as properly part of the original Case at all. The United States\ninsisted upon the opposite view, and in order to remove what was a\ncause of friction in the preparation for coming before this Tribunal, the\nGovernment of the Queen agreed to furnish then and there a copy of\nthe British Commissioners' report, which had been prepared long before;\nand that was accepted by the Agent of the United States and agreed\nby the Agent of the United States to be considered as part of the\noriginal Case. We have, therefore, in that Commissioners' report, ARGUMENTS ON PRELIMINARY MOTIONS. 21\nagain, not one, but several, references to the report in question, Mr.\nElliott's report. And then we come to the Counter Case of the United\nStates, and I do not think, with great deference to the ability and\ningenuity of my learned friends, that they have made even an attempt\nto 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\nbeen perhaps in a somewhat different position from that in which we\nnow stand. But a report can be referred to for one of two purposes.\u2014\nIt can be referred to as affirmative and positive evidence in support of\na particular view, or views. I conceive this point to be important. A\nreport may be referred to and insisted upon for either of two purposes,\neither for the positive purpose, the affirmative purpose, of supporting a\nparticular view, or for the negative purpose of saying that that report\ndoes not contain something that it is alleged that it does contain. It is\nthe latter reference, and the latter use of that report, whicn the United\nStates representatives make in their Counter Case, because, not content\nthemselves with what my friend Mr. Carter has been pleased to call an\nallusion merely to our allusion to the report, they challenge the authenticity and the reliability of our statement in evidence in that report, and\nsay that that which we say is part of the report is not part of the report\nat all; and therefore theyare relying negatively in relation to that report\nupon the statement that it contains nothing of the kind which we allege\nin one respect it does contain.\nTherefore it seems to me that that is an additional and a strong reason\nwhy the whole document should be referred to. Whether adduced for\nthe purposes of affirmative or negative proof, in either case the document itself, when its authenticity is challenged, must and ought to be\nproduced.\nNow so far I have been a little led to say what I should not have felt\ncalled upon to say, because I wished to recall to the mind of each member\nof the Tribunal what is the exact state of facts in relation to the reference to this report.\nNow I come a little more closely to the matter. I agree most cordially with one observation of my learned friend, Mr. Carter, that the\nframing of this Article IV\u2014and I think he might even have extended\nhis statement\u2014is of an exceedingly clumsy character. It is not such a\ndocument as he would have settled, I think. It is not, probably, such\na document as we should have settled; but here it is. I do not suggest,\nas 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\npowers and jurisdiction that the Treaty does not give it. Nothing of\nthe kind. No such idea is in my mind, nor did I intend to suggest any\nsuch idea to this Tribunal; but when you come to matters which are\nwithin the jurisdiction and authority of the Tribunal, then I say that\nneither this Treaty, nor any Treaty, nor any agreement of reference that\never was framed, does in its minute details meet with every consideration that may arise; and that within the fair terms of the Treaty itself,\nand 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\ncompetence of this Tribunal to express its opinion as to what should or\nshould not be done. But I do not really feel that after the statement\nof my learned friend, Mr. Phelps, I am called upon very much more to\nargue that matter. I cannot conceive that when the representatives of\nthe United States on the one hand profess their willingness to produce 22 ARGUMENTS ON PRELIMINARY MOTIONS.\nthe authentic document, which is already in evidence in the way that I\nhave pointed out, and when, the counsel representing the Government\nof the Queen join in the request for its production, there can enter into\nthe 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,\nand to attribute to it such weight as the document itself may properly\nhave attributed to it.\nMy learned friend, Mr. Carter, made some reference to that report,\nwhich I would respectfully suggest to this Tribunal was a reference he\nwas hardly entitled to make. He says that I relied upon the value of\nthe document. I did to this extent\u2014to this extent only. I do not know\nwhat is in the document, but I did say that from whatever point of view\nit was to be looked at, it was impossible not to attribute importance to\na document which was made by a Commissioner specially authorized by\nan Act of Congress to make the report in question upon the very subject\nof seal life which enters so largely into the present controversy; and\nwhen my learned friend, Mr. Carter, suggests hypothetical reasons why\nthat report has not been published, when he suggests that it may not\nhave been published because it may have been considered unworthy of\ncredit, that it may not have been published because it may not have been\nthought worth publishing\u2014if my learned friend may suggest hypotheses\nof that kind, I suppose I may equally suggest a perhaps more natural\nreason\u2014that it was not published because it was not considered favorable to the view for which it was originally designed. But whether that\nview, or my learned friends' hypotheses be the correct one is not the\npoint we are now considering.\nSenator Morgan.\u2014I understand that report was made sometime\nbefore any negotiations\u2014at least before the negotiations had taken\nshape for the Treaty.\nSir Charles Eussell.\u2014I am sorry to say, Sir, that again that is an\ninaccuracy in fact. I want to explain, and it is the last matter that I\ndesire to explain, what the exact position of events, in the order of time,\nwas. The controversy which has resulted in the establishment of this\nTribunal began as early as 1886-1887; was going on through 1888,1889,\n1890; and it was not until the 5th April, 1890, that Congress passed an\nAct under which Mr. Commissioner Elliott was appointed to report upon\nthis very subject matter of seal life.\nSenator Morgan.\u2014I should like to enquire what is the date of Mr.\nElliott's report.\nSir Charles Eussell.\u2014It is somewhere between April of 1890, and\nDecember of 1890\u2014between those dates.\nSenator Morgan.\u2014October, 1890.\nSir Charles Eussell.\u2014I believe the 17th of November, 1890, and,\ntherefore, I think we may well be excused for urging the desirability of\nthis report being forthcoming, when it was a report directed to the subject matter of this controversy; and when the enquiry preparatory to\nthat report was entrusted to a person as to whom the highest character\nwas given by those charged with most responsible positions as representing the executive government of the United States.\nI do not think Sir, that there is anything further that I have to trouble\nthe Tribunal with. I have already, in my original statement, put before\nthe Tribunal my construction of the two clauses of Article IV, which are\nin question; and I do not desire to repeat myself. As I have said, I\nshould not have been: led into these collateral observations had it not\nbeen that I have been tempted, I am afraid, to do so, by the observations\nwhich have been made by my learned friends. I am content to rest the ARGUMENTS on preliminary motions. 23\nmatter where my friend Mr. Phelps left it very early in the course of his\nargument, namely, that the document shall be forthcoming, that the\nTribunal 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\nin the Case. The report is in evidence: imperfectly referred to, I admit,\nbecause we had not the original document; and this application, to put\nit plainly and shortly, is simply that there shall be in its best and most\nauthentic form before this Tribunal that report which is already, but, I\nadmit, imperfectly, adduced as evidence in the case.\nMr. Phelps.\u2014In compliance with the request of the President, I have\nreduced into writing the reply of the United States to this Motion, a\ncopy of which will be furnished to the Secretary before the adjournment\nof the Court. With the permission of the Tribunal, I will read it.\u2014\n\" The United States Government denies that Her Majesty's Government\nis 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\nmatter of right. The United States Government, however, is willing\nto waive (so far as it is concerned) its right of objection, and to furnish\n. to the Agent of Her Majesty's Government a copy of the document\nreferred to, for such use as evidence as the Tribunal may deem proper\nto allow. Not conceding, however, in so doing, that either party at this\nor any subsequent stage of the proceedings has a right to introduce any\nfurther evidence whatever, upon any subject whatever, connected with\nthe controversy. And further stipulating that if the document referred\nto in this motion shall be used in evidence at all, it shall be open to the\nuse of both parties equally in all its points.\"\nSir Charles Eussell.\u2014Oh! clearly, that follows.\nThe Tribunal then adjourned for a short time.\nSir Charles Eussell.\u2014Perhaps, as the Counsel for the United\nStates have read their answer to the motion, I ought to read to the\nTribunal the form of the order which I propose the Tribunal shall make.\nThe President.\u2014Will you be kind enough to read it?\nSir Charles Eussell.\u2014Yes, Sir. \"That the Agent of the United\nStates 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\nfur-seals, pursuant to Act of Congress 1890\".\nMr. Justice Harlan.\u2014You had better give the date of the report, if\nyou can, in that motion.\nSir Eichard Webster.\u2014The 17th of November 1890.\nSir Charles Eussell.\u2014We are not sure that is the date, however.\nLord Hannen.\u2014Sir Charles, is that the form of the order which you\nasked for?\nSir Charles Eussell.\u2014That is the form of order which I at present\nask for.\nLord Hannen.\u2014Precisely; I thought so.\nMr. Phelps.\u2014We did not understand, Mr. President, that this\nmotion would be the subject of any order by the Tribunal upon the\nparty to produce this document. We understood that we produced it\nby consent and furnished it to the Agent of Her Britannic Majesty's\nGovernment, and that the Tribunal would make such order in respect\nto its reception as it might deem proper. To produce this under an\norder of the Tribunal would carry the idea that they were entitled to\nan order for the production of the document, which we do not concede,\nby any means. . .\nSir Charles Eussell.\u2014The matter stands m this way, if I may say\nso: We respectfully call for the order. My learned friend answers that 24 . ARGUMENTS ON PRELIMINARY MOTIONS.\nby saying: \"We say the Tribunal has no authority to make the order,\nbut we waive any objection of that kind and produce it.\" We are\nmerely fighting about words, I think, and not about substance.\nThe President.\u2014Practically both parties are agreed; and the Tribunal in consequence directs that the document be regarded as before\nthe Tribunal, to be made such use of as the Tribunal shall see fit.\nMr. Phelps.\u2014Yes.\nMr. Foster.\u2014Mr. President and Gentlemen of the Tribunal, I desire\nto submit the following motions, which I understand, by consent of\ncounsel, are to be considered together. I will read them first for the\ninformation of the Tribunal and of Counsel:\nSir Charles Eussell.\u2014I beg pardon, a moment; but I would\nrespectfully suggest as a matter of the order of procedure.\u2014I am sure\nthat Mr. Foster will not understand that I make any personal objection\u2014that this matter is in the hands of Counsel and it is Counsel who\nmake motions. My learned friends, Mr. Phelps and Mr. Carter, are, I\nsubmit, the persons to bring this matter under the notice of the Tribunal.\nThe President.\u2014We believe that is a matter to be decided between\nthe Agents themselves, and their Counsel. Have not the Agents\nagreed upon the mode of proceeding before the Tribunal? You know\nyou both represent your Governments.\nMr. Tupper.\u2014There has been, so far as I am concerned, Mr. President, no understanding or agreement on that point; but I took it for\ngranted that as I appear here to obey the orders of the Tribunal and\nrepresent Her Britannic Majesty as Agent, and appear with Counsel,\nthat 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\nside occupied a similar position.\nThe President.\u2014You 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\nwish to proceed.\nMr. Phelps.\u2014General Foster was only about to read the motions.\nHe was not intending to address the Tribunal in support of them.\nMr. Foster.\u2014Mr. President, before you announce your decision I\ndesire to make a statement. I fully concur with the President of the\nTribunal as to my duties. I appear here to present a motion on behalf\nof the Government of the United States. When I have presented that\nmotion, it will be the pleasure of the counsel of the United States to\nargue that motion. In the proper discharge of my duty, I rise for the\npurpose of reading and laying before this Tribunal a motion.\nThe President.\u2014I must ask you whether you protest against that\nmode of proceeding? (Addressing British Counsel).\nSir Charles Eussell.\u2014No, sir; I do not wish to do that at all. I\nmerely interposed because I thought Mr. Foster was under the impression that he thought it was necessary he should introduce it in this way,\nand we did not conceive it to be so. The matter is in the hands of\nCounsel who are by the fifth article orally to conduct the argument.\nThis is really part of the argument in support of a particular motion. ARGUMENTS ON PRELIMINARY MOTIONS 25\nThe President.\u2014We will not recognize the Agents as arguing the\nmatter. We recognize them as representing the Government. Counsel will argue the matter and we will dispose of it.\nSir Charles Eussell.\u2014We have no objection to that.\nMr. Foster.\u2014I proceed:\nThe Agent of the United States desires to bring to the attention of the Tribunal\nof Arbitration the fact that he has been informed by the Agent of Her Britannic\nVslttajjesty, in a note dated March 25th ultimo, that he has sent to each of the members\nof the Tribunal copies in duplicate of the Supplementary Report of the British Commissioners appointed to inquire into seal life in Behring Sea.\nThe 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\nreturned to Her Majesty's Agent on the ground that it is submitted at a time and in\na manner not allowed by the Treaty.\nI follow that with a second motion for the information of the Tribunal:\nThe Agent of the United States moves this Honorable Tribunal to dismiss from the\nArbitration so much of the demand of the Government of Great Britain as relates to\nthe sum stated upon page 315 of the Counter Case of said Government to have been\nincurred on account of expenses in connection with proceedings before the Supreme\nCourt of the United States;\nAnd, also, to dismiss from the Arbitration the claim and request of the same.Gov-\nernment, mentioned on said page 315, that the Arbitrators find what catch or catches\nmight have been taken by pelagic sealers in Behring Sea without undue diminution\nof the seal herd during the pendency of this Arbitration;\nAnd, further, to dismiss from the Arbitration the claim of the same Government,\nmentioned on the said page 315, to show payments by it to the Canadian owners of\nsealing vessels;\nAnd that all proofs or evidence relating to the foregoing claims or matters, or either\nof them, be stricken from the British Counter Case, and in particular those found on\npages 215 to 229 inclusive, of Volume II of the Appendix to said Counter Case.\nThe 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\nGovernment of Great Britain, and that they are not, nor is either of them, pertinent\nor 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\nas tuey come under that head the matters are irregular as being cumulative only.\nI have copies of these motions sufficient to supply the Arbitrators and\nCounsel of the British Government. I will place them in the hands of\nthe Secretary.\nThe President.\u2014The Tribunal will be ready to hear the first motion\nof the United States immediately argued; but the Tribunal must reserve\nfor a later stage of the proceedings the argument upon the second\nmotion, which we do not consider as relevant in the present stage of\nour proceedings. If the Counsel of the United States wish to speak\nupon the first motion, we will ask you to restrict your argument to this\nfirst motion. I mean the motion which relates to the Supplementary\nEeport presented by the British Government.\nMr. Phelps.\u2014The reading, Sir, of the motion to which the President\nhas just alluded, and to which, of course, with great deference to the\nintimation 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\nimportance, and that it is of still greater importance in the effect of the\nquestions to which it gives rise upon other evidence and other parts of\nthe Case that will be found to be extremely material.\nSince the last meeting of the Tribunal, when the written arguments\nwere 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\ndesired an oral argument, or if the Tribunal had not directed it, because,\nas the Tribunal has pereeived, the oral argument is not required by the\nTreaty; it is a privilege accorded to the counsel on either side; it is a 26 ARGUMENTS on preliminary motions.\nright reserved to the Tribunal to direct it, if in their judgment it should\nbecome material. Since then, the Case, so far as the requirements of\nthe Treaty are concerned-was completed, and would have been finally\nsubmitted, the Agent of Her Britannic Majesty's Government has laid\nbefore the Arbitrators, and furnished to us, a printed copy of a new\ndocument, which we have not examined, purporting to be a supplemental report of the Commissioners appointed on the part of Great\nBritain under the provisions of this Treaty. I cannot doubt that this\nstep was taken under the advice of my friends upon the other side, in\nthe belief that it was in the exercise of a right. The existence of such\na right is the serious question which this motion presents.\nIn the first place. I desire to call your attention to the provision in\nthe Treaty under which the report of these Commissioners comes at any\ntime or in any event before the Tribunal. It is to be found in Article\nIX. I may usefully read the whole article:\nThe High Contracting Parties have agreed to appoint two Commissioners on the\npart of each Government to make the joint investigation and report contemplated\nin the preceding Article VII, and to include the terms of said agreement in the\npresent 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\nthe contingency therefor arise, the said agreement, is accordingly herein included,\nas follows:\nEach Government shall appoint two Commissioners to investigate conjointly with\nthe Commissioners of the other Government all the facts having relation to seal life\nin Behrings Sea, and the measures necessary for its proper protection and preser-\nThe four Commissioners shall, so far as they may be able to agree, make a joint\nreport to each of the two Governments, and they shall also report, either jointly or\nseverally, to each Government on any points upon which they may be unable to\nThese 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.\nI will now read Section 7 of the Treaty referred to in Article IX:\nIf the determination of the foregoing questions\t\nthe five questions propounded in the preceding Article.\t\nIf the determination of the foregoing questions as to the exclusive jurisdiction of\nthe United States shall leave the subject in such position that the concurrence of\nGreat 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\nSea, the Arbitrators shall then determine what concurrent Regulations outside the\njurisdictional limits of the respective Governments are necessary, and over what\nwaters such Regulations should extend; and to aid them in that determination the\nreport of a Joint Commission to be appointed by the respective Governments shall\nbe laid before them, with such other evidence as either Government may submit.\nIt will be perceived that the Treaty provides, in the first place, for\nthe appointment of a Joint Commission, in the hope\u2014I am justified in\nsaying certainly, so far as the Government of the United States is concerned, and I doubt not, so far as Her Majesty's Government is\nconcerned\u2014in the hope and confident belief that such a conclusion\nwould be reached by that Commission as should obviate the necessity\nof any further controversy, negotiation or arbitration. If the Commissioners had been fortunate enough to agree, such would unquestionably\nhave been the result; but it is provided\u2014and we shall have occasion\nin the course of this discussion to point out how these provisions originated in the negotiation,\u2014I am dealing with them now only as they\nfind place in the Treaty\u2014it was provided that if this Commission should\nfail to agree upon such Eegulations as the Government should be willing to adopt, then the Arbitration which is now in progress became\nnecessary, which otherwise never would have taken place; and in that ARGUMENTS ON PRELIMINARY MOTIONS. 27\nevent, one of the questions to be submitted to the Tribunal, in the contingency that certain questions, certain claims of right on the part of\nthe United States Government should not be supported, was what\nEegulations should be prescribed by this Tribunal for the concurrence\nof the two Governments, for the object which both had in view in all\nthese negotiations, in all these proceedings, from beginning to end\u2014\nthe protection and preservation of the seal race in the Behring Sea\nand the North Pacific.\nNow, the reports thus provided to be laid before the Tribsnal if that\nquestion should engage their attention, are made evidence. They are\nmade evidence irrespective of the character of their contents. It i?\nbeyond question that whatever these Commissioners chose to embody\nin the report, their opinions, their information, their conjectures\u2014all\nbecome evidence for what they may be thought to be worth in the\nestimation of the Tribunal, but not to be rejected. It is not open to\neither party to say in respect to the contents of these reports, \" This\npassage is hearsay; that is conjecture; the third is Opinion; the fourth\nis vague and general information, and therefore it does not constitute\nlegal evidence, and must be discarded in the consideration of the case \".\nWe 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\nconclusive evidence, not in all parts of it equally forcible evidence, but\nevidence that is to be admitted.\nIt will be perceived, therefore, that the evidence afforded by the\nreports of these Commissioners on both sides\u2014and these observations\napply equally to both sides\u2014have an unusual character; that is to say,\nmuch of their contents, which if it were undertaken to be put into the\nCase through the mouth of any other witness might be properly objected\nto as not evidence, is made evidence here. And it will be seen, furthermore, that unquestionably it was the expectation of the Treaty that\nthe reports of the Commissioners on both sides would engage the\nserious consideration of the Tribunal. It is made not only evidence to\na 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\nauthors of it are concerned.\nNow these Commissioners failed to agree, except to a limited extent,\nthere was a Joint Eeport to a small, but in our judgment, to a very\nimportant, extent, which was laid before the Governments, and has\nalready undoubtedly attracted the attention of the members of the\nTribunal. But on many points of great importance they failed to\nagree; and the consequence was that under the provision of the\nTreaty, separate reports were made by the British Commissioners to\ntheir Government, and by the American Commissioners to theirs; and\nthose reports have found their way, properly enough, into the Case, and\nthey are already before the Tribunal for such consideration as they may\nbe thought to be entitled to.\nAfter this Case is closed, after all the successive steps which the\nTreaty provided for have been taken, after the Case and the Counter\nCase and the written argument have all been submitted; after the\nCase has come to an end, except so far as the decision and award of\nthe Tribunal is concerned, unless one or more of the parties, or the\nTribunal itself should avail of the right under the Treaty to have an\noral argument, we are presented with a printed volume, purporting to\nbe, 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.\nexamine it or to receive it. I cannot speak of its contents, therefore, in\nparticular. It is a body, unquestionably, of facts, statements, allegations and matter which becomes evidence; which the Tribunal must\ntreat, if they receive it at all, as evidence; which may be, and we are\nbound to presume if our learned friends care to put it in at this stage,\nis very important evidence. It may be, for all we know, the evidence\n1 that may determine the conflicting points in this case. It may be the\nevidence that shall bring you to a conclusion upon this, that and the\nother important question in dispute; the new evidence contained in\nthe supplementary report may settle these questions and bring us to a\ndecision that, without it, we should not have.\n' Now then, what is the exact proposal? Without yet looking into\nthe letter or the spirit of this Treaty, what is the exact proposal that\nis involved by the offer of this evidence at this time? It is that there\nshall be put into the case, not only subject to the consideration of the\nTribunal, but commended by the terms of the Treaty to the especial\nconsideration of the Tribunal, a new and important body of testimony,\nsimilar, E presume we have a right to suppose, to their previous report.\nCan we reply to it? Can we contradict it, explain it, impeach it,\nmodify it? The door is absolutely closed. It is not in the power of the\nTribunal to permit any such reply. It is not in our power to make it,\nif the Tribunal should undertake to give us the opportunity.\nThe evidence upon this subject is at the ends of the earth. It is in\nAlaska and British Columbia and California and Asia. It is all over\nthe world. It is utterly impossible for us to attempt at this day to\nintroduce any evidence in reply to this document; and it is equally\nimpossible for the Tribunal, who are called upon by the Treaty, if possible, to determine this Case within three months from the time of its\nsubmission, to afford us the opportunity.\nThe result is that if our learned friends are right in supposing that\nthey are entitled to put in this evidence at this time, a mass of evidence\ngoes into the Case without the possibility of reply, presumably of the\nhighest importance. Now, I shall be glad to know if in the proceedings\nof any tribunal that ever sat judicially for any purpose, since the principles of justice came to be known, any such proceeding was permitted,\nas that a party shall have his cause decided upon the determination of\na question of fact, based upon evidence that he never saw and never\nhad an opportunity to reply to ? Is it possible to carry this question\nanother step unless it is found that the Government of the United States\nhas been foolish enough to have brought itself by a distinct agreement\ninto such an extraordinary position as that? An arbitration to settle\nfacts that are in grave dispute, and must be determined upon evidence.\nOn what evidence ? Evidence ex parte, evidence that the party against\nwhom it was produced was never confronted with and never had an\nopportunity to answer, evidence that, so far as the Tribunal knows,\nmay be true or may be subject to complete contradiction.\nNow, let us look at the provisions of this Treaty and see upon what\nground it has been claimed by the learned Counsel or may possibly be\nclaimed by any Counsel, that this state of things shall be brought to\npass. It will be seen in the first place, that so far from this Treaty in\nany of its parts, or in any of the spirit that is to be derived from any of\nits parts, contemplating such a result, or leaving it open to inference that there may be such a result, it is sedulously excluded. It is\nprovided in the 3rd Article. \" The printed Case of each of the two parties, accompanied by the documents, the official correspondence, and\nother evidence on which each relies, shall be delivered in duplicate to ARGUMENTS ON PRELIMINARY MOTIONS. 29\neach of the Arbitrators and to the Agent of the other party as soon as\nmay be after the appointment of the members of the Tribunal, but within\na period not exceeding four months from the date of the exchange of the\nratifications 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,\nthe Case, the documents, the allegations, the proofs which each party\nrelies upon shall be not merely laid before the Arbitrators but shall be\nfurnished to the other party.\nSenator Morgan.\u2014\"Printed\".\nMr. Phelps.\u2014Printed, and laid before the other party. For what\npurpose? To give the other party that opportunity of reply without\nwhich no administration of justice can take place, or ever undertook to\ntake place. That is what it is for. The next, Article 4, provides that\n\" Within three months after the delivery on both sides of the printed\nCase, either party may, in like manner, deliver in duplicate to each of\nthe said Arbitrators, and to the Agent of the other party, a Counter\nCase, and additional documents, correspondence, and evidence, in reply\nto the Case, documents, correspondence, and evidence so presented by\nthe other party \". There is the opportunity on each side for a complete\nreply to the evidence contained in the printed Case previously delivered.\nThen it is provided in the next clause,\u2014I need not read it in extenso\u2014\nthat if either party finds that time too short to complete his reply, he\nmay give notice within a certain time, and an additional period of sixty\ndays beyond the three months is allowed him. So sedulous is the\nTreaty in respect to giving this complete opportunity of reply, that, in\naddition to the three months allowed primarily, it is at the option of\neither party to require two months longer.\nThen follows the provision that was under discussion this morning,\nby which it was carefully provided that, if any documents were alluded\nto or specified on either side in support of their case, on demand of the\nother side they should be forthcoming, and that if any document was\nput in evidence, the other side might demand a sight of the original or\na certified copy if he questioned its authenticity. And I am reminded\nthat in pursuance of this provision, Her Majesty's Government did ask\nfor the extension of sixty days for the completion of their Counter Case\nwhich 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\nmonth after the expiration of the time limited for delivery of the Counter\nCase 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\nthe points and referring to the evidence upon which his Government\nrelies. Either party may also support the same before the Arbitrators\nby oral argument of Counsel; and\" the Arbitrators may, if they desire\nfurther elucidation with regard to any point, require a written or\nprinted statement or-argument, or oral argument by Counsel, upon it.\"\nThose are the successive steps by which the case.is to be brought\nbefore the Tribunal; first by the Case, second, by the Counter case or\nreply, third, by the written argument, fourth, if it is desired by the\nparties or the Tribunal, by the oral argument.\nNow let me remark again, as I had occasion to remark this morning,\nthere is no line in this Treaty which professes to confer upon the Tribunal any authority over this system of procedure except to enforce it\nas it reads. It is not allowed to the Tribunal to say that, though the\nCase is required to be filed within four months, it may be filed within\nsix. It is not allowed to the Tribunal to say that the Counter Case, if\nnot filed within five months, may be filed in seven, or that the written 30 ARGUMENTS ON PRELIMINARY MOTIONS.\nargument provided for may be furnished two or three months after the\nCase. All that discretion, as everybody knows, does attend the jurisdiction of any established judicial Tribunal having general judicial\npowers. But in this case these two countries having constituted a\nspecial Tribunal for the decision of this special Case alone, have thought\nproper to not merely constitute the Tribunal, but to define and limit\nand prescribe with the utmost particularity all the steps of its procedure.\nThen, recurring to Article 7, it has been said on the part of Her\nMajesty's Government, because as we shall see, this subject has been\nthe occasion of correspondence, it has been assumed that the question\nof regulations submitted to the Tribunal was not to be taken up or\nentered upon until the hearing upon the previous questions in the Case\nhad been completed and the decision of the Arbitrators announced;\nthat is to say, that the Treaty provides for special separate arbitrations\nby the same Tribunal. That the Case is to be completed, argued and\nsubmitted upon the five previous questions, that a decision is to be\nreached and an award is to be made, and then if that award should be\none way, that a new hearing upon new evidence, upon new argument\nwas to take place on question six. Well, passing for this moment, the\nquestion whether there should be a separate hearing, which we altogether deny as a construction of the Treaty, the enquiry is, upon what\nevidence are you to enter upon the question of the Eegulations, if you\never do enter upon it\u2014not at what time, not upon what oral argument,\nbut upon what evidence are you to enter upon a question which depends\nexclusively upon evidence and proof?\nOther questions in this case involve important considerations of law,\nand some of them possibly are purely questions of law. The question\nof Eegulations, if the Tribunal should ever reach the determination of\nit, is purely a question of evidence submitted to a Tribunal who are not\nchosen for their familiarity with the facts upon which it depends, who\nfrom the very nature of their high position and employment must be\nabsolutely ignorant on the whole subject till they are enlightened by\nevidence. What Member of the Tribunal, what gentleman who could\neven have been thought of as a proper Member of it is expected to\nunderstand the business of seal life and seal killing and seal breeding,\nand all its incidents that now encumber this case to such an extent that\none can never be sure that he has mastered it?\n\"The Arbitrators shall then determine what concurrent Eegulations\noutside the jurisdictional limits of the respective Governments are necessary, and over what waters such Eegulations should extend, aud to aid\nthem in that determination the report of a Joint Commission to be\nappointed by the respective Governments shall be laid before them, with\nsuch other evidence as either Government may submit.\" What other\nevidence? Howtaken? When? Howrepliedto? How brought before\nthe Tribunal? The Treaty is absolutely silent, unless it is the evidence\nwhich in the Articles I have already read is provided for, to be set forth\nin the Case and the Counter case, and to be dealt with in the Argument.\nWhile the Tribunal is invested with no power to take testimony, or to\norder the taking of testimony, or to fix a limit of time within which it\nshould be taken, or the manner in which it should be made known to\nthe other side\u2014while there is absolutely no suggestion of such a provision, nor the conferring of any general jurisdiction that would include\nit, 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\ncommon rules of construction that regard in the first place the object in\nview, and secondly, the context of the whole instrument and not detached ARGUMENTS ON PRELIMINARY MOTIONS. 31\nwords which standing by themselves may be consistent or inconsistent\nwith one construction or the other. If the words are not decisive in\ntheir 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\nsituation of the parties, as throwing the best light upon the meaning of\nthe terms.\nTherefore passing altogether the question of when the Tribunal is to\nhear argument upon this question, what evidence are they to consider\nwhen they do undertake to determine it. That is made perfectly clear\nwhen we find that no evidence can come before it in any way that the\nTreaty provides or in any way that the Treaty authorises the Tribunal\nto 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\nof 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\nunder 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.\nThese 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\nArbitrators 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\nUnited States Government have set up. We regard that construction\nas altogether erroneous. It is the contingency of the Arbitration itself\u2014\nthe contingency of there being any Arbitration, not the contingency of\nthe decision on the previous question that the Arbitration shall reach,\nif it takes place.\nBefore, 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\nthe attention of the Tribunal to the history of the language of article\nseven, which I have been previously considering. With your permission, I will recur to that subject for a moment, long enough to point out\nhow this language came to be employed. The Treaty, as I need not say\nto any judicial eye that has perused it, is a piece of patchwork. It has\nbeen reached in the process of a long negotiation, here a little, and there\na little\u2014now a provision then a provision, and most unfortunately it was\nnot submitted, after all these pieces of patchwork were brought together,\nto 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\nis full of expressions, each of which taken by itself would be found to be\naltogether inconsistent with something else.\nWe are required for instance to furnish a written Argument within\nthirty days after the Counter Case is filed; but the Treaty requires that\nin twenty days the Arbitrators shall assemble and \"immediately\" enter\non the decision of the Case. The written argument then comes in ten\ndays after the Tribunal have decided the case. That is only an illustration.\nMr. Justice Harlan.\u2014Itisnot \"decide\", but, \"proceed to examine\".\nLord Hannen.\u2014And \"consider it.\" No one could have been so sanguine to imagine it could be decided immediately.\nMr. Phelps.\u2014It is to be presumed that a Tribunal of such distinguished members as this would not have considered this case for ten\ndays without forming some opinion upon it.\nSenator Morgan.\u2014We might have spent that much time in the question of what our powers are, might we not? 32 ARGUMENTS ON PRELIMINARY MOTIONS.\nMr. Phelps.\u2014Well, Sir, that is not for me to say, but no doubt some\ntime may be usefully spent on that point. What I was about to remark\nin regard to Section 7 is this\u2014that it was originally proposed by the\nUnited States in very different language. In the first volume of the\nAppendix to the United States Case, at page 286, the Tribunal will find\nthe first draft of article 6, which is very different from the language that\nappears in the Treaty. I need not stop to read it. It is enough to\nremark, as it is iu print before you, that it is a totally different Article\nfrom the one that is now in the Treaty. It was objected to by Great\nBritain, and upon what ground ? Solely upon the ground that Her\nMajesty's Government was sedulously anxious (you will find that in\nthe letter of Lord Salisbury to Sir Julian Pauncefote of February the\n21st, 1891, which is in the same volume at page 294) in framing this\nTreaty, to separate the question of Eegulations from the claim of right.\nThe position of Her Majesty's Government was, that to regulations\u2014\nwhich are not a matter of right;\u2014but are for the discretion of the Tribunal\u2014the concurrence of Great Britain is necessary, and though the\nTribunal has power to prescribe that the concurrence shall take place,\nyet at this hearing the question of right on the part of the Government\nto make its own Eegulations, and the regulations to be prescribed by\narbitration, if it has no such right, should not be considered together.\nIt was in reply to that, as the correspondence shows, if you will turn to\nthat, the letter at page 310 of the same volume from Mr. Wharton to Sir\nJulian Pauncefote of the 25th of June, 1891, was written. He quotes\nLord Salisbury's objection to the letter to which I have previously\nreferred in these words: \"In the note of Lord Salisbury of the 21st of\nFebruary last,\"\u2014the letter I last referred to, \"he states his objection\nto the sixth proposition, as presented in the letter of Mr. Blaine of\nDecember 17th, 1890, in the following words.\n\" The sixth question, which deals with the issues that will arise in case\nthe controversy should be decided in favour of Great Britain, would, perhaps, more fitly form the substance of a separate reference\". That letter\nI 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\u2014\"to referring the general\nquestion of a closed time to arbitration, or to ascertain by that means\nhow far the enactment of such a provision is necessary for the preservation of the seal species; but such reference ought not to contain words\nappearing to attribute special and abnormal rights in the matter to the\nUnited States\". And the previous draft that I have referred yon to on\npage 286 was open to that objection. It was so drawn that it appeared\nto confer upon the Tribunal the power to prescribe Eegulations which\npresupposed rights of jurisdiction on the part of the United States.\nSo that if Eegulations had been so prescribed by the Arbitration, it\nmight not have been clear whether they proceeded on the ground that\nthey were Eegulations which the United States had a right themselves\nto prescribe in the exercise of an existing jurisdiction, or whether in the\nabsence of any such jurisdiction they were regulations such as the Tribunal thought, by the concurrence of the Nations, ought to be adopted.\nSenator Morgan.\u2014Do you mean jurisdiction within Behring Sea?\nMr. Phelps.\u2014I do not remember at this moment the application of\nthe language to that suggestion, whether it was to Behring Sea alone,\nor 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\nthe seals frequenting Behring Sea habitually resorted to. ARGUMENTS ON PRELIMINARY MOTIONS. 83\nSenator Morgan.\u2014That was introduced into the negotiation later.\nMr. 1 helps \u2014Yes. Mr. Wharton on the part of the United States\nproceeds as follows:\u2014\"1 am now directed by the President to submit\nthe following, which he thinks avoids the objection urged by Lord Salisbury\". Then he submits the draft which is now found in the Treaty.\nSenator Morgan.\u2014Wonld you allow me to ask, if it does not inter-\nrapt yon, what was the date of the submission of that draft?\nMr. Phelps.\u2014That letter is dated the 25th Jane, 1891. The letter\nof Lord Salisbury stating this objection is dated February 21st; there\nwas intermediate correspondence, of course, but the decisive reply\nwhich met the point of the letter of February 21st did not come till\nJnne 25th, and then it was satisfactory to Her Majesty's Government,\nand the Article was put into the Treaty in the language Mr. Wharton\nMr. Phelps.\u2014Perhaps it was rather more, but, at all events, four\nThis review of the language of that Article will show that there is no\nparticular significance to be attached to these words \"further evidence\":\nthat they are, bo far as that section is concerned, what might almost be\nMr.\nPhelps.\u2014\nIntl\nle 7\nLor\ni Hannen\n No\n. it\nSen\n11 or MORG\nAN.\u2014\n-Yei\nMr.\naltera\nPhelps.\u2014\n-Yes,\nth\nintelli\nprovis\nwhich\nwhich\nIrene\n'emplates,\nion,the su\nthe prese\nit, with an]\nsho\nmiis\nold\ndfc\neery n\nto the\nDefen\nhint to an\nant\nho <\nvh i<-li the argo\nment of\nribnnal,\nmcy as a Court c\nf Chan-\ntime should be\nallowed\nnd such a time\nto the\n> to the Compla\nnanl to\n1 we are brough\nt to the\nfproce-\nre can be no ju\nst ice of\nscan be\nded upon evidei\nice with\ndgment unless it is founded upon justice of pi\ni such thing as a just judgment which is foum\nInch the other party has never been confronted.\nNow Sir I recur to what I had begun to say on the subject of the\nnd \"'contingency\" in the ninth article, because we have been apprised\nprevious correspondence of the ground upon which the proposal to\nye this evidence is intended to be supported. The reports it is said\nall not be made public till submitted to the Arbitrators, or until it\nall appear that the contingency of their being used by the Arbitrators\nnnot arise. In the first place, that has reference merely to the pub-\nB S, PT XI 3 34 ARGUMENTS ON PRELIMINARY MOTIONS.\nlication 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,\nas my learned friends will contend, to the contingency of the Tribunal\ndeciding against the United States on the five questions that are first\npropounded, or does it refer to the contingency of there being any arbitration at all? There again we are enlightened by referring to the\ncorrespondence. When we look into the history of that Article which\nwas likewise the \"child of travail\", when we see how that article came\nto pass in the form which it has assumed, we see what that contingency\nmeans. The original theory or desire of both these Governments, I\nrepeat, was that this Commission would settle the dispute; that if they\nwent to the islands\u2014if experts selected for the purpose examined the\nsubject exhaustively\u2014more exhaustively than you can examine it on\nevidence, that they would be sure to agree, inasmuch as they started\nwith a common object.\nThat was the view of the Governments; but whether all the Commissioners acted with that intent or not, is a very different question, which\nwill engage your attention at a later stage of this hearing. That the\nGovernments 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\nit was that they did not succeed will be the subject of discussion before\nwe cease to trouble you with the consideration of this Case. It is\nimmaterial now. These two provisions that are now embodied in the\nsame Treaty were originally separated.\nGreat Britain for a long time, (I cannot detain you to wade through\nall this correspondence, but if you should care enough about this point\nto run through it, you will perceive that it supports what I say, and I\nthink that my learned friends on the other side will not question it,)\nGreat Britain for a long time was pressing the proposal of\" this Joint\nCommission. It was not received by the United. States with favor in\nthe first place, but still it was pressed with diligence and ability by the\nBritish Government, and finally the United States gave way, and.two\nAgreements were made, (one for the joint Commission) which are now\nembodied principally in article 9 of the Treaty of Arbitration. If the\nCommissioners agreed, there would be no occasion for any Arbitration.\nLord Hannen.\u2014Where is that embodied in the Treaty? Is that\nanywhere embodied in the Treaty that, if the commissioners agreed the\nArbitration would not go on?\nMr. Phelps.\u2014No, your Lordship, it is not. I am referring to the\ndiplomatic correspondence, which, upon the reference I shall endeavor\nto give will shew very plainly that the Government hoped and expected\nthat the Commissioners appointed would settle this dispute; if they\nfailed 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\nCase, became immaterial, as all that the Government of the United\nStates wanted was the preservation of the seal. They did not care to\nhave a decision upon an abstract question of immaterial rights. It is\nthe interest of no nation to challenge decisions such as that.\nI shall have occasion, when the report comes to be considered, to\nenlarge upon these points; all that I am upon now is the question what\ndoes the term \"contingency\" refer to in the ninth Article? I say that\nthe previous correspondence shows that it refers to the contingency of\nany Arbitration being necessary at all, not to the contingency of what\ndecision the Arbitrators should make if they made any. Mr. Blaine had 1\n.IMINARY MOTIONS 35\nPauncefote to Mr. Blaine of April\naccepted by the American Government. It was not accepted, but not\nupon any difficulty about the point I am now talking about; whoever\nwill take the trouble to go through the pages will see that the draft then\nsubmitted by Sir Julian Pauncefote which is a very elaborate draft from\nLord Salisbury founded the objection not on this point but others; and,\nTreaty contains these points. This is the first Article: \"The High Contracting Parties agree to appoint a mixed Commission of Experts who\nshall enquire fully into the subject and report to the High Contracting\nParties within two years from the date of this Convention the result of\ntheir investigations, together with their opinions and recommendations\non the following questions\". Then it states five questions, which I need\nnot read, having reference only to the best method of protecting the\nseals. Then Article 2: \"On receipt of the Eeport of the Commission\nand of any separate Eeports which may be made by individual Commissioners, the High Contracting Parties will proceed forthwith to determine\naforesaid, and any Eegulations so agreed upon shall be embodied in a\nfurther Convention to which the accession of the other Powers shall be\nThen the third Article is.\u2014\"In case the High Contracting Parties\nshould be unable to agree upon the Eegulations to be adopted, the questions in difference shall be referred to the Arbitration of an impartial\nGovernment who shall duly consider the Eeports hereinbefore mentioned, and whose Award shall be final, and shall determine the condi-\nGreat Britain I repeat, pressing to have the subject determined by\nthe mixed Commission, willing to provide thatif the Regulations reported\nArbitration should take place to determine what Regulations should be\nGovernments. This ultimately took a different shape, and resulted in\nother Powers sh\nSH1\nacced\ndito\nt. The abov\ncommend them tc\nsian Minister. T\nh^haveT\neen'fr\nZT\nlyme\n\"mTsnirftOF\nin a manner ho\nlorable to\nall pa\nrtiest\nlid v.\northy of the\nnations concerns\nI.\" 36 ARGUMENTS on preliminary MOTIONS.\nThis patchwork took and re-took shape, and was turned over in this\ncorrespondence, which was very protracted; and when, at last, one section after another, under different circumstances, and at different times\nhad taken form and had been brought together, from that it will be seen,\nby travelling through this correspondence from beginning to end, where\nthis word \"contingency\" came from.\nIt 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\nlearned Arbitrators, when you come to embody them together, and put\nin not only Article 9 but Article 7, there is room for saying that since\nthe Arbitrators are not to determine the Eegulations until they had\ndetermined the rights; peradventure the contingency that is referred to\nin Article 9 is the decision that is spoken of in Article 7.1\nThe President.\u2014Possibly, Mr. Phelps, if you are going to begin a\nnew point it is better for us to adjourn till to-morrow.\n[Adjourned till to-morrow at 11.30.] THIRD DAY, 5\u2122 APRIL 1893.\nThe President.\u2014Now, Mr. Phelps, will you kindly continue your\nargument ?\nMr. Phelps.\u2014I had the honor, Mr. President, on yesterday to consider at a length for which, in view of the importance of this question,\nI shall not apologise, the construction of this Treaty as bearing on the\nquestions of when and how the evidence on which the Tribunal has to\nproceed shall be submitted to its consideration. I have spoken of this\nEeport which it is proposed to put in, as a piece of evidence merely;\nevidence invested, however, by the terms of the Treaty with a broader\nscope and a higher character than is afforded to other evidence. I\nremarked that I had not examined the Eeport, and that I could not\nspeak from knowledge in respect to its contents. I have been since\ninformed, and if I have been inaccurately informed I shall be subject\nto the correction of my learned friends, that this Supplemental Eeport,\nas it is called, of the British Commissioners, contains in a sort of\nAppendix a new mass of evidence; depositions of witnesses bearing\non the questions of fact in the case. So that it is not only proposed\nto put in at this stage, if my information is right, a further Eeport of\nthe Commissioners, but a mass of testimony of witnesses testifying\nupon oath in respect of the facts reported. Now, if that is so, is it\npossible to carry this discussion any further? Can it be conceived,\nafter the particular provisions of this Treaty in respect of the time and\nmanner of\" the submission of the evidence, that at this late stage, when\nwe are just rising to address the Court in an oral argument that might\nnot have taken place at all,\u2014for as I have pointed out the Treaty does\nnot \"require\" it; it only \"allows\" it,\u2014that at this stage, not merely\nthis supplemental Eeport that we are objecting to, but a mass of ex parte\ntestimony 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,\u2014that such evidence is to be brought in, and\nperhaps turn the decision of the case, on the important facts that\nunderlie it.\nTwo theories have been propounded by the respective parties, upon\nthe construction of the Treaty, in respect to the method of procedure.\nAs I have remarked, this point has been the subject of some diplomatic discussion, which I shall ask the attention of the Tribunal to, and\nthe views of the other side have been communicated to us in a letter\nwhich accompanied, I believe, the notice that this Eeport would be\noffered, so that we are advised of the position which the Counsel for\nHer Majesty's Government take. Their theory is this: That there are\nto be, in effect, two hearings, two Arbitrations, two awards, first upon\nthe five questions that are propounded in the Treaty, next in the\nevent that those questions should be decided in favor of the British\nGovernment, a further hearing upon the subject of Eegulations, and\nthat on that hearing fresh evidence, other evidence not theretofore in\n87 38 ARGUMENTS ON PRELIMINARY MOTIONS.\nthe case, is to be admitted. That is their view. We deny altogether\nthat the treaty contemplates any such thing as two hearings or that\nthe Case discloses any propriety for such a method of procedure; I do\nnot say necessity, but any propriety.\nThe language of the article is: \"If the determination of the foregoing questions as to the exclusive jurisdiction of the United States\nshall leave the subject in such position that the concurrence of Great\nBritain is necessary to the establishment of Kegulations for the proper\nprotection and preservation of the fur seal in or habitually resorting to\nBehring sea, the Arbitration shall then, determine \", not that they shall\n\"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\nbe a second Arbitration\", but \"that they shall then determine\".\nIt is the common case, the very common case in judicial proceedings,\nwhere a case presents different questions, the decision of one of which\none way supersedes the necessity of deciding the others;\u2014as where a\nliability in an action is denied, if that contention is sustained, and it is\nfound that the defendant is not liable, there is an end of the case; if\nthe decision is the other way, and it is held that the defendant is liable,\nthen arises and requires to be determined, the question of damages.\nNot upon a second hearing. All those questions are argued together\nto the Court; and they determine so many of them as is found to be\nnecessary to the disposition of the case. The same remark applies to\na great variety of cases. There are very few cases of any magnitude\nthat turn necessarily and entirely upon one question. There are usually alternatives of decision. A multitude of points are argued, any\none of which may be, in the judgment of the Court, decisive. This Case\nis no more than that, and provides for no more than that; and the\nlanguage of these Articles is perfectly consistent with such construction, even though taken alone you might say it was not inconsistent\nwith the other.\u2014Taking a few words here, or a line there, you might\nsay that is consistent with the other construction; but if there is any\npatent or latent ambiguity in the language that is employed in these\narticles, it is disposed of as far as the question of evidence is concerned,\nwhen you find that the only opportunity for putting in evidence at all\non any question, is confined to the Case and to the Counter case. I\nadmit that it is conceivable that you may hear this Case twice, that\nyou may hear the five questions and decide them, and then hear the\nsixth, though the Treaty calls for no such thing, and the ordinary course\nof procedure precludes it. But that you shall hear it upon any other\nevidence than that which the case already discloses, is impossible,\nunless you adopt the alternative that you will hear it upon evidence\nwhich the Treaty furnishes no means of taking or submitting, and no\npossible means of reply to by the side against whom the evidence is\nproduced. Our construction of the Treaty therefore is that the whole\ncase is to be heard upon the evidence in the Case, and in the Counter\ncase; and what the proper discrimination between the two is I shall\nhave occasion to ask the attention of the Tribunal to hereafter.\u2014But\nthe hearing is to proceed upon the evidence that is already in the Case\nand the Counter Case, and there is no provision for, and no possibility\nof admitting further and future evidence of any kind under the strict\nprovisions of this Treaty. This question is not new; I mean it is not\nnew in the history of the Case. The United States, to begin with,\nnever having conceived for a moment of any other construction as possible, and never dreaming that any such other construction would be\nset up, put in to its Case, its original Case, all its evidence upon every ARGUMENTS ON PRELIMINARY MOTIONS. 39\npoint and particular. It was all printed, and went into the hands of\nthe British Government at the time when the Case was delivered, on\nthe 1st September, the time fixed in the Treaty.\nMr. Justice Harlan.\u2014It was due September 7th.\nGeneral Foster.\u2014September 5th I think.\nMr. Phelps.\u2014It was some early day in September, and we conformed\nto the time imposed by the Treaty, whatever it was. It all went in, the\nevidence we stand upon today, except that which is contained in our\nCouuter Case, which is strictly in reply to the evidence on the other\nside. 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\nquestion in the Case, except the questions propounded as to the previous possession and occupation by Russia.\nThat is a question which we shall regard and treat as altogether subordinate. It depends chiefly upon documents; documents that are not\nnew, which everybody had seen before. The British Case, therefore,\ncontained nothing except a re-print of documents and papers relative\nto the old title asserted by Russia over the Behring sea, and the Treaties\nbetween Great Britain and Eussia and Great Britain and the United\nStates, and the correspondence that preceded and followed them. That\nis what they furnished us. I am reminded by Mr. Foster that there is\nsomething about damages in their case, but that is a small matter. On\nall the merits of the case, with which you will be called upon to deal,\nmerits that cannot be approached, as I said yesterday, except on the\nbasis of evidence, for they all rest on questions of fact, they gave us\nnothing at all. That was immediately made the subject of correspondence between the Governments, and on page 139 and following, as far\nas page 150 of the Counter Case of the United States, will be found\nthat correspondence. I respectfully ask the Members of the Tribunal\nto peruse it. I am not justified in taking up the time to read it here;\nbut I respectfully ask its perusal. The Government of the United States\nexpressed its surprise that no evidence had been submitted on the part\nof Her Majesty's Government on any of the questions, which it was\nperfectly well known by long dispute and correspondence, were those\non 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\nwas undoubted. It was not for us to suggest what evidence they should\nput in, or that they should put in any; so that if we were informed by\nthem that it was not designed to submit evidence, we nad nothing further\nto say. We could not, however, believe that to be possible; and, therefore, we claimed that the Treaty required they should put it into their\nCase, 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\nto reply to it by any evidence; and, as we pointed out, with a very scanty\nopportunity, if the evidence was contained in the Counter Case, even\nto deal with it in argument. Because the Couuter Case was received\nas late as the 3rd of February; the first meeting of the Arbitrators was\non the 23rd of February; we had to find our way across the Atlantic,\nand not only to make but to print and even translate, which involved\nprinting twice, such written arguments as we desired to submit; so that\nnot only were we deprived of the possibility of taking any evidence in\nreply, first because the Treaty did not admit of any evidence after the\nCounter Case, and secondly, because the time did not allow it. We had\nnot even time to deal except very hastily in the written argument that is\nnow before you,-\u2014with the evidence on the other side, we pointed out 4U ARGUMENTS ON PRELIMINARY MOTIONS.\nalso that the American Commissioners' Eeport was included, as it should\nhave been, iu our Lase. The separate Eeport made to our Government\nby the American Commissioners was furnished, but the British Eeport\nvas withheld. We pointed out in this letter the gross injustice of\nhaving a Eeport made up by the British Commissioners after having\nbeen furnished with the Eeport of the American Commissioners as the\nresult of their joint investigation. Lord Eosebery was sufficiently\nstruck with the force of those considerations to state, or we should not\notherwise have known it, that the British Eeport had been prepared in\npoint of fact and placed in the hands of their Government before our\nCase had been received, so that we were in error in supposing, what\nwe were justified in supposing until we were otherwise informed, that\nthe 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\nthe British Commissioners' Eeport, being willing to treat it as a part of\ntheir Case as we had offered, because in this communication we had\nsaid \"If you will furnish your evidence now, we will accept it as part\nof the Case; the time is past,\u2014but we do not stand upon that.\" They\nsent us the British Eeport, saying that they would treat it, as we had\nproposed to do, as part of the Case; but he declined to accept the views\nof the United States Government as to the other questions.\nThen the question arose what the Government of the United States\nshould do, whether it should go on in the face of the assertion of the\nother side that it was proposed to put in their whole testimony when\nwe could not answer it, nor even deal with it (except the British Commissioners' report), or whether the Arbitration should terminate then\nand there. The question may be asked why it was not terminated.\nThat is not for me to answer. If I had been in control of the policy of\nthe Government, instead merely of the conduct of this case, it would\nhave terminated. I never would have consented to a proposition that\nseemed to me gross in its injustice and humiliating to the Government\nthat submitted to it. In my opinion to go on upon such a proposal\nwith a proceeding that professedly in its theory, in its object, was to\ndispose by friendly Arbitration of questions that had arisen between\ntwo nations, of whom neither had the right or desire to suppose that\nthe other wished for anything but fair dealing and fair discussion, was\nnot to be thought of. But wiser Counsels undoubtedly than mine prevailed and the Government of the United States decided to go on.\nThey did not accept, acquiesce in, or agree to the theory of the British\nGovernment. In the last letter of Mr. Secretary Foster will be found\nstated with great clearness and precision the attitude of his Government.\nI state the substance without taking up your time to read it. It was\nin effect that to revoke and stop the Arbitration was in the estimation\nof the Government calamitous. They thought perhaps that in receiving the British Eeport they had obtained most of the evidence on the\nother side, perhaps substantially all the evidence, and above all, that\nthey would stand in the judgment of the Arbitrators at last as to what\nEvidence was legitimately before them under the provisions of this\nTreaty, and what was not.\u2014And they were willing to trust themselves\nto the judgment of the Tribunal, and to reserve the objections which\nthey still insisted upon to that mode of trial until the case had come to\nbe heard.\nSenator Morgan.\u2014Did the British Government protest against\nputting in the Eeport at the time? ARGUMENTS ON PRELIMINARY MOTIONS. 41\nMr. Phelps.\u2014The British Government said, as you will perceive\nfrom the correspondence and the letter of Lord Eosebery, that they did\nnot conceive that we were entitled to it, but as we had complained of\nthe manner in which they had proceeded, they were willing to furnish\nit to us. They furnished it to us very much as we furnished to our\nfriends on the other side the Eeport that was under discussion yesterday, not as a matter of right, but as a matter of favor.\nLord Hannen.\u2014A concession.\nMr. Phelps.\u2014Yes, a courtesy.\nSenator Morgan.\u2014Was it furnished as constituting part of the Case.\nMr. Phelps.\u2014It was furnished to be received as a part of their\nCase. That is the way it was received, but in making it a part of their\nCase, they did not admit that they were obliged to do so, but that in\nview of the considerations we had presented as to its fairness, they consented to do it. If they had furnished their other evidence, there would\nhave been no ground of complaint. The case went on, and on the 3ld\nof February we received the Counter Case which is before you, which\nyou will perceive contains a great mass of evidence, of which the Eeport\nof the British Commissioners which we had previously seen was but a\nsmall part. A great amount of ex parte depositions\u2014we do not complain of their being ex parte\u2014ours are ex parte\u2014that is the necessity of\nthe case. But the fact that it was necessarily ex parte made it far more\nimportant that we should be furnished with it in time to reply. But\nthe testimony is not only ex parte, but came to us on the same day that\nit came to you. We saw this testimony when you saw it, and we never\nsaw it before. Then it became necessary for Counsel to determine what\ncourse to take. An obvious course was to apply to the Tribunal in\nadvance of the hearing to strikeout all the evidence upon the merits\u2014\nall the evidence that should have been in the Case\u2014I mean all that was\nnot properly in reply to our Case. What would have been the consequence of that motion if we had made it? If the Tribunal had\naccepted our construction of the Treaty, and held that its Articles\nrequired that their evidence in chief should go into their Case, and that\nthe Counter Case should be confined to evidence in reply, and had\ntherefore stricken out the whole body of this evidence, that would be,\nof course, an end of the Arbitration. We could not expect that my\nlearned friends would go on with this case if all their evidence was\nstricken out. We could not ask them to do it. If we had succeeded\ntherefore in eliminating from this case all the evidence on the part of\nHer Majesty's Government, we should have brought the Arbitration to\nan end, because, as I have before remarked, there is no power in the\nTribunal to enable them to replace it. It would have been only an\nindirect way of revoking the Arbitration, if we had prevailed by the\ndecision of the Tribunal upon such a motion. We examined the evidence, and decided, unfair and unjust as it was, and much as we should\nhave liked to reply to much of it, that we could sustain our case notwithstanding, and we would go on.\nNow, upon the top of that, after our written argument is submitted,\nand when we rise to address the Court, a new batch of affidavits or\ndepositions, or whatever they should be called, and a fresh report by\nthese industrious gentlemen whose labors have pervaded the case from\nbeginning to end, and whose conjectures and inferences and hearsay\nand everything else that they think proper to include, are made evidence\nby the Treaty, are proposed to be put in. What is the consistency of\nthe position on the other side ? They say that in their view all evidence\nbearing upon Eegulations should be reserved till after the Award of the 42 ARGUMENTS ON PRELIMINARY MOTIONS.\nTribunal upon the previous five questions; that our evidence on the\nsubject printed in our Case, is irregular, and should not have been put\nin at all; that they were not only justified but required to withhold\ntheirs, 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?\nIf it bears only on Eegulations, why is it now offered on their theory?\nThe time has not yet come for putting in any of it, if their construction\nis correct. Why is their Commissioners' Eeport, which is by the\nTreaty solely confined to the subject of Eegulations\u2014why is that in?\nIn answer, it may be said, to our complaint. Then why is the rest of\nthis evidence offered, if the time for it has not yet come? On the other\nhand, if it bears on the merits of the Case, and as these questions are\ninextricable, it does bear upon the merits of the Case, and you will find\nin the printed arguments of my learned friends that it is all relied\nupon all the way through on all questions, why was it not included\nin the Case where we could meet it? By this inconsistent construction\nwhich in its result is so unfair, they get into the case for all purposes\nthrough their Counter case, the body of their evidence, in such maimer\nthat we are entirely unable to reply to it by testimony in contradiction,\nimpeachment, or explanation. The Tribunal will seethe importance of\nthis. They will see why we have felt justified, at a length that I fear\nhas been wearisome, in discussing the construction of the Treaty on\nthis all-important point. The United States Government point out in\ntheir correspondence that if they had dreamed of such a construction,\nthey would, not have entered into this Treaty. They need not have\npointed it out. Is there a man who is compos mentis that would enter\ninto a contract to try an important cause before any Tribunal, upon\nthe terms that his adversary should hear and have possession of his\nevidence, and have an ample opportunity of replying to it, and that he\nshould have no opportunity to meet the evidence that was brought\nagainst him? Is there a Court that ever sat that had any discretion\non the subject that would permit such a thing to take place? Is it\nconceivable that the United States Government were so anxious to\nafford the world the example of an international Arbitration that they,\nunderstanding it, entered, into an agreement to try this case upon\nthose terms ? Mr Blaine, who had ceased to be Secretary of State,\nand is now passed away, but under whose administration this Treaty\nhad been negociated\u2014one of the last acts\u2014the last act, I am reminded,\nof his life that had.reference to any official business, was to subscribe\nhis 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\ncourse of the proceedings. It was an unnecessary declaration, because\nto suppose the contrary would be to stultify the Secretary of State.\nThe President.\u2014Is this opinion of Mr Blaine laid down in an\nofficial document which you mention.\nMr. Phelps.\u2014He had ceased to be Secretary of State, so that it\nwould not be proper to describe it as an official document, lt was fur- .\nnished to the Secretary of State and transmitted to the British Government, and is printed in the correspondence to which I have just\nreferred the Tribunal, and will be found in page 150.\nThe President.\u2014Will you be kind enough to read it if it is not too\nlong?\nMr. Phelps.\u2014It is from Mr. Blaine to Mr. Foster, November the 8th\n1892. Mr. Foster was then Secretary of State: \"After an arbitration\nhad been resolved upon between the American and British Goverments,\na special correspondence between the Department of State and Lord ARGUMENTS ON PRELIMINARY MOTIONS. 43\nSalisbury ensued, extending from early in July to the middle of November, 1891. The. various subjects which were to be discussed, and the\npoints which were to be decided, by the Arbitrators in the affair of the\nBehring sea were agreed upon in this correspondence. A month later\nSir Julian Pauncefote, the British Minister, and myself arranged the\ncorrespondence and reduced the propositions to a Memorandum which\nwas signed by us on the 18th December.\" (That sustains the remark in\nrespect of the history of this Treaty that I made yesterday.) \" Subsequently, the questions which had arisen between the two Governments\nconcerning the jurisdictional rights of the United States in the waters\nof the Behring sea were expressed in the form of a Treaty concluded at\nWashington on the 29th February, 1892. This Treaty was confirmed\nby the Seriate on the 29th March, 1892, ratified by the President on the\n22nd April, ratifications exchanged on the 7th May, and proclaimed on\nthe 9th May, 1892. In all these steps, including the correspondence with\nLord Salisbury, the Memorandum concluded between Sir Julian and\nmyself, and the Treaty that was ultimately proclaimed on the 9th May,\n1892, and which was negotiated by Sir Julian and myself, not one word\n. was said or intimated respecting the question now raised by the British\nGovernment as to a secondary submission of evidence after the first\nfive points set forth in Article VI had been decided by the Arbitrators.\nIt was never intimated that any other mode of proceeding should be\nhad than that which is expressed in Articles III, IV and V of the\nTreaty.\" Articles III, IV and V of the Treaty are those which provided for the Case, the Counter Case, and the Argument. That is Mr.\nBlaine'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\nterminating this correspondence, and enclosing to him this paper signed\nby Mr. Blaine. He had argued this Case very fully and very clearly,\nas it seems to me, through this correspondence; and be concludes:\n\"Having thus expressed the views entertained by the Government of\nthe United States upon the argument of Lord Eosebery in support of his\ninterpretation of the Treaty, it remains for me to add that I am\ninstructed by the President to say that he appreciates the spirit of\nequity and liberality in which Lord Rosebery, while insisting upon his\nown interpretation, practically to some extent at least, and I hopefully,\nyields to the Government of the United St.ites the benefit of its interpretation by furnishing to the latter the separate'Eeport of Her\nMajesty's Commissioners, with the permission that the same be treated\nas part of the original Case on the part of Great Britain. If, as I\nbelieve and assume, this Eeport contains substantially all the matter\nwhich 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\ncapturing them, I entertain a confident hope that all further difficulty\nupon the questions discussed in this note may be avoided. I deem\nit necessary, however, to say that the Government of the United States\nwill, should occasion arise, firmly insist upon its interpretation of the\nTreaty, and that it reserves the right to protest against and oppose the\nsubmission to, and reception by the Arbitrators of any matter which\nmay be inserted in the British Counter Case which may not be justified\nas relevant by way of reply to the Case of the United States.\"^\nThe President.\u2014That is previous to the Counter Case having been\ngiven over.\nMr. Phelps.\u2014Yes.\nGeneral Foster.\u2014Three months before. 44 ARGUMENTS ON PRELIMINARY MOTIONS.\nMr. Phelps.\u2014Three months before, and as I remarked a little while\nago, the Government were undoubtedly actuated in a large degree by\nthe opinion assumed by Mr. Foster that in getting the British Commissioners' Eeport we had substantially the whole of the evidence, and\nthat the question as to the submission of the evidence in chief in the\nBritish Counter Case, though important, was practically one neverthe\nless, that we might not find it necessary to insist upon. Then three\nmonths after comes the Counter Case which is before you, and we find\nourselves, as might have been anticipated, in the dilemma I have stated.\nIn asking you to reject the evidence it contains\u2014and we believe we\ncould make it very clear that it ought to be rejected\u2014we should, only\nbe asking you to terminate the Arbitration at this late stage. We did.\nnot take this responsibility. And therefore we must undertake to go\non and deal with this evidence in the best way we can.\nThese are the grounds, Sir, upon which we protest emphatically\nagainst the reception of this supplementary report or any other future\nevidence 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\nto be justified, the anticipation of the United States, that they might\ntrust themselves without terminating this Treaty, as we should be completely warranted in doing, in the hands and the judgment of a Tribunal\nselected not to represent one party pr another, but to do justice.\nThere is another objection to this Eeport to which I must briefly call\nattention. I have discussed it thus far as being a piece of evidence,\njust 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\nof the depositions of witnesses.\nSir Charles Eussell.\u2014That is not so.\nMr. Phelps.\u2014But there is a special objection in our apprehension in\nthe 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\nopen now, it would be open till the award is made, and evidence might\nbe put in after the argument; if it were held that evidence is now\nadmissible, this document is not admissible. This Eeport, with the\nextraordinary weight and quality which is conferred upon it by this\nTreaty, as a very cursory reference to the duties of this Commission\nwill show, should not be received.\nYou will excuse me perhaps for reading again what has been read\nseveral times, namely Article 9, because it has not been read with a\nview to this point. \" The High Contracting Parties having agreed to\nappoint two Commissioners on the part of each Government to make\nthe joint investigation and Eeport contemplated in the preceding Article VII, and to include the terms of the said Agreement in the present\nConvention, to the end that the joint and several Eeports and recommendations of said Commissioners may be in due form submitted to the\nArbitrators, should the contingency therefor arise, the said Agreement\nis accordingly herein included as follows: Each Government shall\nappoint two Commissioners to investigate,\"\u2014how? \" Conjointly with\nthe Commissioners of the other Government, all the facts having relation to seal life in Behring's Sea, and the measures necessary for its\nproper protection and preservation. The four Commissioners shall, so\nfar as they may be able to agree, make a joint Eeport to each of the two\nGovernments, and they shall also report, either jointly or severally\",\u2014\neven in the event of disagreeing they are still authorised to report\njointly, though not required to do so,\u2014\"to each Government on any\npoints upon which they may be unable to agree. These Eeports shall ARGUMENTS on PRELIMINARY MOTIONS.\nnot be made public\", and so forth. The investigation was to be i\ninvestigation. It was not the absurd provision of the Gover\nAlaska to gather evidence on its side, leaving the other side to take\nThat needed no Treaty. It was to appoint Commissioners\" whoseposi-\ntion corresponded to your own, to investigate jointly for the benefit of\nboth Governments the main facts underlying the questions in dispute;\nto report jointly if they agreed, and jointly if they chose if they were\nunable to agree, or severally; and then it was provided most properly\nthat the conclusions and recommendations and discoveries of such a\njoint Tribunal, I may almost call them, \u2014a Commission joint in its\ncharacter, in which both Governments were represented\u2014that those\nshould be laid before the subsequent Tribunal, if it became necessary\nto have a subsequent Tribunal. It is most proper that they should be\nlaid before you, but the force they are likely to have when they come\nbefore 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\nthe spirit of the Treaty.\nNow, the function of those Commissioners was exhausted when these\nEeports were made, as far as the other Government was concerned.\nThey became fundi officio when they made their reports and submitted\nthem. There is no provision in the Treaty and no contemplation, that\nhalf the Board after that, without the knowledge or concurrence of the\nother half, should either make another expedition up to Alaska or should\nsit down m London and make an investigation, and make a large body\nof evidence and a new Eeport on those questions, and that, at a late\nstage 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\nidea as that. What they chose to do for their own Government after\nthat is no affair of ours. They may make as many Eeports and investigations for their own Government, if their Government choose to\nemploy them to do so, as they like.\nMr. Justice Harlan.\u2014Do you know when the investigation was made\nupon which this supplemental Eeport was based?\nMr. Phelps.\u2014No better than Your Honor knows. I know nothing\nat all about it. We never heard of this supplemental Eeport till the\nsame time that you did.\nSir Charles Eussell.\u2014I beg you pardon; you had notice in the\nCounter Case that we should present such, but only on the question of\nEegulations, not on the incidents of seal-life.\nMr. Phelps.\u2014I never read it. It is undoubtedly there if my learned\nfriend says so; but it never attracted my attention.\nMr. Justice Harlan.\u2014What you mean is, that the document was not\nseen by you?\nSenator Morgan.\u2014It must have been in existence when the Counter\nCase was handed in, if an allusion is made to it in the Counter Case.\nLord Hannen.\u2014It is only reserving a right to present it in future.\nSenator Morgan\u2014I spoke of the existence of the Eeport. It must\nhave been in existence at the time that the Counter Case was delivered.\nSir Charles Eussell.\u2014When the time comes, I will explain it\nexactly.\nMr. Phelps.\u2014There is a great deal more to be said about these\nEeports; but not now. That arises on the merits of the Case, and I do 46 ARGUMENTS ON PRELIMINARY MOTIONS*\nnot intrude them on this question, which is only as to the admissibility\nof this one.\nNow, I say that the Treaty does not warrant.it. 1 should have said\nthat, in pursuance of this provision, the United States threw those\nIslands open to this Commission, furnished vessels, and extended every\npossible facility. They went there together,\u2014the four Commissioners,\nas they should have done. They went at the same time; but they\ndeclined the offer of the United States to furnish the same vessel, Mr.\nFoster reminds me; so that they went on their expedition, and our\nCommissioners made their Eeport, but the Islands were thrown open\neither to themselves or with us. Then comes a Eeport which will\nengage your attention at the proper time; and now comes this proposition, that after this is all over without any new investigation, for it will\nnot be pretended that they have been up there again, I think,\u2014at a late\nstage in the case they can sit down and make a new document which\nshall become evidence in the Case? It would not be evidence, a large\npart 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\nthe Treaty, it does not acquire that character. I insist, therefore, in\nrespect to this document that, aside from the general objection to the\nadmission of any evidence at all, at this stage this is especially obnoxious because it is an attempt to exercise functions by the Commissioners\nthat had been exhausted under the terms of the Treaty by their previous Eeport. Lord Eosebery was struck, as I have said, when Mr.\nFoster pointed out to him these Eeports that were to be the result of a\njoint investigation and perhaps a joint Eeport.\u2014\"We have given you\nours; yours is to be made up in reply to ours.\"\u2014\"Oh! no,\" said Lord\nEosebery, \"that is not so. Our Eeport was completed, and in the hands\nof Her Majesty's Government on such a day\"\u2014some date in June,\nI think,\u2014\"so that you are in error in supposing that the British Commissioners have availed themselves of the chance of examining your\nEeport before they made theirs.\" And he furnishes the Eeport. How\nis 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\nthe same thing in its effect, and gather more testimony and more hearsay and conjecture and suspicion, until the thousand tongues of rumour\nare exhausted, and still make it evidence.\nThere is only one other point, and it is the last remark, I have to\ntrouble you with. One other ground for the admission of this evidence\nwas 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\nwould be glad of any \"trustworthy\" information that would aid them\nto determine the questions before them. \" Trustworthy\" in the estimation of Her Majesty's Government is ex parte testimony which has been\nconcealed from the other side and no possibility of reply allowed! Is\nthat trustworthy information? Through what back door of the Tribunal is it expected that such evidence would make its appearance in\nCourt if it made its appearance at all? Trustworthy? If the Treaty\ndoes not quite admit it, you must really accept it, because it is so\n\"trustworthy\"! I cannot add anything to the force of that adjective,\nand 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,\nand as we say utterly out of order will come up hereafter. We are now\nengaged only in protesting that this addition should not be made to it. ARGUMENTS ON PRELIMINARY MOTIONS. 47\nSir Charles Eussell.\u2014Does any body add anything?\nMr. Carter.\u2014I designed to close the discussion, but I desire brevity\nand I shall not offer anything further at this point.\nThe President.\u2014I call your attention to the fact that we have only\nhalf an hour before the interruption of our meeting.\nSir Charles Eussell.\u2014I cannot conclude in that time.'\nThe President.\u2014I dare say not. I mention the fact beforehand in\norder that you may dispose your argument in consequence.\nSir Charles Eussell.\u2014If you please, Sir.\nWhen, Sir, we received the Notice of motion which the representatives of the United States thought proper to send intimating their\nintention to make the application which has been put forward by my\nlearned friend we anticipated a discussion which would have been of\na legal character. In other words, we anticipated a discussion upon\nwhat was the true interpretation of the Treaty under which and under\nwhich alone this Tribunal derives its authority, and we certainly did\nnot anticipate that this would have been made the occasion of importing into the discussion the heat, the extraordinary heat, that my learned\nfriend has manifested, and still less did we anticipate that it would\nhave been made the occasion for flinging very broad, very wild, and,\nas I shall hope to demonstrate, utterly unfounded suggestions of\nattempted injustice on the part of Her Majesty's Government.\nMr. Phelps.\u2014I did not mean to say that, Sir Charles. I meant to\nsay that the result was injustice.\nSir Charles Eussell.\u2014Well I am glad to have given the opportunity, at all events, for a disclaimer of something which certainly was\nconveyed, in our apprehension, by some things that my learned friend\nhas said. My learned friend has made these high sounding appeals to\njustice and has told us that there can be no justice of judgment unless\nthere is justice of procedure, what is that\u2014(my learned friend will not\nsuppose I mean to be offensive in saying it)\u2014but a neatly dressed platitude? This Tribunal is, I admit,\u2014nay, it is part of our Case,\u2014governed\u2014governed absolutely\u2014by this Treaty, I begin by making the\nadmission, that if, according to the true construction of that Treaty,\nwe 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\nmatter of course. But I hope to make it apparent, not I will say to a\nmajority only of this Tribunal, but I hope to make it apparent to each\nindividual member of this Tribunal that we are perfectly within our\nrights according to this Treaty in the course that we have pursued and\nin claiming admissibility for the document in question. Now I shall\nbest express the condensed sense of the argument which I have to\naddress to you by reading, as I know it is the desire of the Tribunal\nthat I should read, our short answer to the contention on the other\nside, which has been reduced into writing, and which, as I think the\nPresident desired in the previous Case, should be handed in to those\nwho have charge of the record of our proceedings. We submit \" that\nthe supplementary report of the British Commissioners dated the 31st\nJanuary 1893 presented solely with reference to the question of Eegulations and under the provisions of the Treaty of Arbitration of the\n29th of February 1892 is properly presented to the Tribunal and should\nbe considered by them in the event of their being called upon to determine pursuant to Article VII what if any concurrent Eegulations are\nnecessary.\" Now, Sir, you will observe that puts in the fore ground a\npoint obscured in the argument of my learned friend it puts in the fore\nground the fact that this Supplementary Eeport is not conversant with, 48\nARGUMENTS ON PRELIMINARY MOTIONS.\ndoes not pretend to deal with, is not intended to be used in relation to\nany of the questions of right raised in this Arbitration, and this brings\nme to the very heart of this contention. This brings me to, in fact,\nthe point which alone can supply any justification for the grave importance which my friends have sought to attach to this discussion. What\nis that point. What is the heart of this mystery. It is this. That\nmy learned friends desire that this Tribunal should deal with all the\nquestions embraced within the purview of this Treaty as if they were\nbut 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\nany question in the Treaty. And therefore the first point to which I\ndesire 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\nsets of questions, or two divisions of questions, I should prefer to say,\ndiffering in their nature and as to which different considerations as to\nevidence apply, but that this division marks out a further division of\nthe functions of this Tribunal itself in the consideration of those two\ndivisions.\nNow you have before you, Sir, copies of the articles of the Treaty,\nand I will not trouble you by more than a passing notice of articles\nIII, IV, and V, which deal with the presentation of the Case, on each\nside and which in Article V contemplates, not as a matter of grace or\nfavor, as my learned friend seemed at one moment to suggest, but as\na matter of right, oral argument before these Arbitrators upon the\nquestions involved; and then machinery having been provided in those\nArticles III, IV, and V, for the presentation of the Case on each side,\nby Case Counter Case and Argument, Article VI proceeds to set out\nfive points which may be shortly described by me\u2014I think correctly\ndescribed,\u2014as claims of right upon the part of the United States in\nrelation to the subject matter in controversy; and not of right merely,\nbut of exclusive right. The first question is the exclusive jurisdiction\nclaimed in the Behring sea, and the exclusive rights in the seal fisheries which it is alleged were asserted and exercised by Eussia. That\npoint being made on the part of the United States, in order to support\nwhat is put forward more or less seriously\u2014very seriously indeed in\nthe diplomatic correspondence which led to the Treaty, but which, if I\nmay judge from the arguments presented, and the Counter Case of the\nUnited States, is now going to take what my learned friend euphemistically called a subordinate place in the arguement\u2014the second question is \"How far were these claims of jurisdiction as to the seal fisheries\"\u2014\"of jurisdiction\", that is to say these exclusive claims, \"as to\nseal fisheries recognized and conceded by Great Britain\". Need I do\nmore than point out in passing to the Jurists whom I am addressing\nthat upon that allegation was intended to be asserted a claim by the\nUnited States based upon long user, acquiescence, and recognition of\ncertain supposed rights, so that Great Britain was to be excluded from\nthe consideration of those laws which regulate territorial jurisdiction\nand cognate rights, and was in the language of lawyers to be estopped,\nto be prevented from saying that these rights so recognized had no\nlegal foundation or support in International Law at all.\nThe third question is subsidiary to these: \" Was the body of water\nnow known as the Behring's sea included in the phrase' Pacific Ocean',\nas used in the Treaty of 1825 between Great Britain and Eussia, and\nwhat rights, if any, in the Behring's sea were held, and exclusively\nexercised by Eussia, after said Treaty\". Again a question of right. ARGUMENTS ON PRELIMINARY MOTIONS. 49\nAllegation on the part of Great Britain that, whatever may have been\nthe antecedent state of things, that passed- away and was removed by\nthe Treaty of 1825, because the Treaty of 1825, according to the contention of Great Britain, gave in express terms rights of fishing\namongst other rights\u2014I should have said it recognized\u2014not gave, but\nrecognized rights of fishing, amongst other rights in the Pacific Ocean,\nwhich was a comprehensive phrase, intended to include the Behring\nsea. No, said the United States, the Behring sea was left, and left\ndesignedly out of the Treaty, and whatever rights Eussia claimed and\nexercised to Behring sea were left untouched by that Treaty. But\nnow, according to my learned friend, this has become a subordinate\nquestion. He has referred to that distinguished man now passed\naway, a man whose ability both Hemispheres have recognized and\nacknowledged, some of whose able communications and arguments upon\nthis matter I shall have to consider at a later stage of this discussion.\nBut 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\nthe United States, Volume I\u2014he wrote in this language:\u2014\"Legal and\ndiplomatic questions, apparently complicated, are often found, after\nprolonged discussion, to depend on the settlement of a single point.\nSuch, iu the judgment of the President, is the position in which the\nUnited States and Great Britain find themselves in the pending controversy, touching the true construction of the Eusso-American and\nAnglo-Eussian Treaties of 1824 and 1825;\" and then, after dwelling\nupon that for a moment he goes on, \"If Great Britain can maintain\nher 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\nof the United States has no well grounded complaint against her;\"\nand yet we are now told by my learned friend that the importance of\nthis question is receding into the background and is, after all, only a\nsubordinate question. Why it suits the exigencies of the discussion\nof my learned friend to assume that position will become apparent\nwhen it is more germane to the matter in hand to enlarge, as 1 must at\na later stage enlarge, upon this branch of the argument and of the\ncontroversy. What is the next question ? Did not all the rights of\nEussia as to jurisdiction and so on, pass by the cession of 1867 when,\nas you know, the United States of America acquired by cession of that\nyear 1867, the district of Alaska and the rights properly incident to\nthe territorial cession of that country\u2014again supporting their derivative title ? Fin ally. \"Has the United States any right, and, if so, what\nright of protection or property in the fur seals frequenting the Islands\nof the United States in Behring sea when such seals are found outside\nthe ordinary three mile limit?\"\nNow I have read these questions, I would submit,\u2014and I appeal to\nthe judgment of any single Arbitrator who hears me\u2014and I do not\nunderstand my learned friend even to suggest the contrary\u2014that every\none of those questions depends upon right. As I say, I do not understand that to be disputed. But what follows from that? Why not\nonly that there is a distinction as to the character of the questions,\nbut that this distinction involves\u2014necessarily involves\u2014a distinction\nin the functions which this Tribunal have to exercise in relation to\nthose questions, if there be found also in the Treaty questions which\ndo not depend upon right. What is that distinction ? Well, it is clear.\nYou are a distinguished body of Jurists. You are chosen because you\nare so. You are here not to~make the law, not to declare what the law\nought to be, but you are to adjudicate upon questions of right as the\nB s, PT XI 4 50 ARGUMENTS ON PRELIMINARY MOTIONS.\nlaw is. In other words, in this respect, your functions are distinctly*\nabsolutely, solely, the functions of Judges and of Jurists.\n' But I pass from those questions, and I have to show if I can that the\nTreaty contemplates by this Tribunal the settlement of other questions\nwhich are not dependent upon right, which are not dependent upon the\nassertion of exclusive right; but you are asked (the questions of right\nbeing decided), to apply your minds as an impartial Tribunal, and\nrepresenting not one side but both, recognizing the fact that there are\nother rights than the rights of the United States and other rights than\nthe rights of Great Britain, to determine what regulations are necessary for the proper protection and preservation of the fur seal. You\nare then dealing with an area of the open sea in which the rights of\nmankind are common and you are asked, in the interests of all to say\nwhat would be the just, the necessary, the proper regulations addressed to\nthe object, the main object, of this Arbitration, the preservation of the\nfur seal.\nSenator Morgan.\u2014Does the learned Counsel insist that that is a judicial function on our part f -\nSir Charles Eussell.\u2014Not at all. I am glad that the Member of\nthe Tribunal who has addressed me is recognizing the distinction that I\nam drawing. No. When you get to that part of the Case, you will\nhave to do what in the interest of all concerned is expedient. You have to\nstand between these parties who are in controversy, recollecting that each\nof them has a right which must be regarded and borne in mind and that\n. outside the immediate parties to the controversy there are others who have\nrights as apart of mankind.\nSenator Morgan.\u2014In that view, if I understand the Counsel, we\nhave something to ordain in that particular view of the case, and not anything to adjudicate.\nSir Charles Eussell.\u2014You have to recommend and to recommend\nwith authority.\nSenator Morgan.\u2014\"Determine\" is the language.\nSir Charles Eussell.\u2014Yes, determine.\nLord Hannen.\u2014\"Determine\".\nSir Charles Eussell.\u2014Determine I agree that is .what you have to\ndo; and without pledging myself for the moment to the acceptance or the\nnon-acceptance of the word \" ordain\" as distinguished from the word\n\"determine\", as distinguished from the word \"adjudicate\" which possibly\nis correct.\u2014I can convey my meaning, I think, intelligibly; you have,\nunder the first head, to deal as Judges and Jurists, under the second\nhead, you have to deal as just men ordaining a set of rules which the\nparties have left to your determination and which you are asked to\ndetermine in view of all the interests affected. That I take to be the\ngrave distinction.\nWell then in what order is this question to come before you. If my\nlearned friends are right or my learned friend Mr. Phelps is right in\nhis contention, there is no reason why he should not begin at what I\nwould call the wrong end of this discussion\u2014why he should not say\n\" Well, I have already gone the length of admitting that these questions\nof right are gradually receding into the background, I do not attach\nimportance to them. I will ask the Tribunal to begin with the Eegulations\"! Could he do so?\nMr. Justice Harlan.\u2014What I wish to ask just here is whether, in\nyour use of the word rights you are referring to the rights that maybe\ninvolved in the answers to the first four questions, or do you embrace\nalso the rights involved in Question 5? ARGUMENTS on preliminary motions. 51\nSir Charles Eussell.\u2014Unmistakably Question 5,\u2014unmistakably,\nbeyond any possibility of argument whatever, yes, and the contrary\nhas not even been suggested in argument by my learned friend Mr.\nPhelps; absolutely.\nSenator Morgan.\u2014If the learned Counsel will indulge me for a\nmoment I wish to call attention to the first question under Article 6,\n\"What exclusive jurisdiction in the sea now known as the Behring's\nSea, and what exclusive rights in the seal fisheries therein did Eussia\nassert and exercise prior and up to the time of the cession of Alaska\nto 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\nEussia is not the proposition that we have to answer instead of the\nrightfulness of the exercise and assertion.\nSir Charles Eussell.\u2014I think both; either would be enough for\nmy purpose, but I think both. But now I follow the question addressed\nto me by another member of the Tribunal and I would desire to give a\nlittle fuller answer to it. How are these questions introduced? I was\nputting to myself the question whether it would be competent to the\nEepresentatives of the United States to say. \" We will dispence with\nall those questions 1, 2, 3, 4 and 5. We will ask the Tribunal straight\naway to come to the question of Eegulations under Article VII\".\nWould it be within their competence to ask it. Would it be within\nthe 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\npoints shall be submitted to them in order that their award shall\nembrace a distinct decision upon each of the said five points \". Therefore the decision of the Tribunal upon each of those five points cannot\nbe dispensed with, but what is the order of the decision. Could they\ndecide the question of Eegulations first and then proceed to the question of right? No, because Article VII provides this. I need not say\nthat any interpretation points to a contingency. \" If the determination\nof the foregoing questions as to the exclusive jurisdiction\" you observe\n| of the United States shall leave the subject in such position that the\nconcurrence of Great Britain is necessary to the establishment of\nEegulations for the proper protection and preservation of the fur-seal\nin, or habitually resorting to the Behring sea\". What is to follow?\n\" the Arbitrators shall then determine\" that is to say if the contingency\nhappens, then, but not till then, \"the Arbitrators shall determine\nwhat concurrent Eegulations outside the jurisdictional limits of the\nrespective governments are necessary and over what waters such\nEegulations should extend\".\nI think therefore that I have so far made good my position\u2014I ought\nnot to say that I think so, as it is not the habit of Counsel, with us at\nleast, to express personal opinion and I wish to guard myself and desire\nto 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\nthe arguments advanced in support of them without bringing iu, and\nI 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\npropositions put forward in the argument which I have had the pleasure\nof reading presented by the United States which 1 should be sorry to\nbe, and I think my friends would be sorry themselves to be committed\nto as approving Lawyers.\nThe contingency is, therefore, that if it shall be found that the matter\nstands in such a condition of things that there is not the exclusive 52\nARGUMENTS ON PRELIMINARY MOTIONS.\nright peculiarly appertaining to the United States, which is suggested\neither under an inherent or under a derivative title, then the question\n\u25a0 of Eegulations is to arise. I now think this the convenient moment\nfor supplementing the further answer to the question which one of the\nTribunal was good enough to address to me as to Question 5. The only\ndifference between Question 5 and the preceding Questions is this.\nBoth relate to questions of right; both are based upon allegations of\nright on the part of the United States. The only difference is that\nwhereas the Questions 1,2,3 and 4 are based upon what I may call the\nderivative title under Eussia and upon the allegation of acquiescence\nof Great Britain, Question 5 asserts those rights of protection and of\nproperty as inherent in the United States itself by virtue of its territory\nand rights inherent in itself, exclusive of others. That is the only\ndifference. In other words, Question 5 points to rights of an exclusive\nkind belonging to the United States by reason of its inherent powers\nas territorial owners; Questions 1, 2, 3 and 4 are conversant with the\nallegation of rights of the same kind but based upon a derivative title\nfrom Eussia, a title which they allege to have been recognised by Great\nBritain.\nNow, I claim, therefore, to have made good, so far, the position with\nwhich I set out.\nMr. Justice Harlan.\u2014In order that I may get your idea exactly,\nwill you tell me, is it your contention that the arbitrators could not\ndetermine the question named in the first two lines of Article VII as to\nthe exclusive jurisdiction of the United States without also determining\nthe question of the right of property in Question 5.\nSir Charles Eussell.\u2014I think, Sir, I must ask you to be good\nenough to repeat that question, and, if you could, in a little louder\nvoice?\nMr. Justice Harlan.\u2014Is it your position, which I want to understand fully, that the arbitrators could not determine the question in the\nforefront of Article VII as to the exclusive jurisdiction of the United\nStates without determining also the question of the right of property\nnamed in Question 5?\nSir Charles Eussell.\u2014No, I say that is involved. I have already\nanswered that in the answer that I have already given to you.\nMr. Justice Harlan.\u2014Yes.\nSir Charles Eussell.\u2014You will observe, Sir, that the thing is\nclear. \"If the determination of the foregoing questions,\" you will\nobserve, the argument is clear and I beg to point out that it would have\nbeen very convenient, if this idea was passing through your mind or\nthrough the mind of any member of the Tribunal, if my learned friends\nthemselves had been asked about it, because my learned friend (and\ntherein 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.\nThe first words of Article VII are. \"If the determination of the foregoing questipns as to the exclusive jurisdiction of the United States.\"\nIt draws no distinction between Question 5, and Questions 1, 2, 3 and\n4. It deals with the foregoing Questions. The foregoing Questions\nare Questions 1,2,3,4 and 5. That is my answer.\nBut now, Sir, I proceed.\nThe President.\u2014I would rather that we broke off here if you are\ngoing to begin a new part of your argument.\nSir Charles Eussell.\u2014If you please.\n[The Tribunal then adjourned for a short time.] ARGUMENTS ON PRELIMINARY MOTIONS 53\nSir Charles Eussell.\u2014Sir, so far I have dealt only with the clear\nand 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\nsaid nothing about the Commissioners. It will be apparent to the\nTribunal that the reference to the Commissioners appears in the Treaty\nin an inverted order. That is to say that Article VII refers to the part,\nso to speak, that their opponents are to play in the controversy when it\nbecomes a question of Eegulations before the Tribunal whereas it is in\nArticle IX that we find the constitution of the Commission itself; and\ntherefore, with the assent of the Tribunal, I would refer to Article IX\nfirst as being, I think, in the more natural order.\nArticle IX provides that:\nThe High Contracting Parties have agreed to appoint two Commissioners on the\npart of each Government to make the joint investigation and report contemplated in\nthe preceding Article VII and to include the terms of the said agreement in the\npresent Convention to the end that the joint and several reports and recommendations of the said Commissioners may be.\nNot \"shall be \" but\" may be \":\u2014\" In due form submitted to the Arbitrators, should the contingency therefor arise.\"\nThereupon it proceeds: \"That each Government is to appoint two\nCommissioners to investigate conjointly.\" And further:\nThe four Commissioners shall, so far as they may he able to agree, make a joint\nreport to each of the two Governments, and they shall also Report either jointly or\nseverally to each Government, on any points upon which they may be unable to\nThen follows the provision that they are not to be made public until\nsubmitted to the Arbitrators, or until it shall appear that the contingency of their being used by the. Arbitrators cannot arise.\nNow, 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?\nI do not think it can be disputed. I do not understand my friend Mr.\nPhelps to have suggested the contrary.\nMr. Carter.\u2014I do not know that Sir Charles expects an answer to\nthat.\nSir Charles Eussell.\u2014Merely yes or no. I anticipated rightly\nthat there was no contention about that.\nMr. Carter.\u2014There is; we shall not agree to that.\nSir Charles Eussell.\u2014I beg your pardon. I understood you to\nagree. Now, I understand it to be suggested that the Commissioners\nreports have relation to other matters than the matter of Eegulations.\nThat is what I understand.\nMr. Carter.\u2014They relate to everything that they are pertinent for. .\nSir Charles Eussell.\u2014Yes; 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\nthat the States Counsel take. In certainly understood\u2014I may have\nbeen wrong, of course I should not seek to bind my friend Mr. Carter\nby any statement that my friend Mr. Phelps made;\u2014but my friend Mr.\nPhelps in distinct terms said that this was the ordinary case in-which\none question being submitted one way, other questions might, become\nunnecessary to consider at all: therefore, if the first five questions were\ndecided one way, the question of Eegulations might become wholly\nimmaterial. But I do not seek to rely upon any admission, qualified or\nabsolute. I rely upon the Treaty itself. What is the matter to which 54 ARGUMENTS ON PRELIMINARY MOTIONS.\nthese reports, to use my friend Mr. Carter's slightly dubious expression,\nare pertinent? This at least is clear, that Article IX contemplates a\ncontingency in which their reports shall not be used. So far, I think,\nwe agree.\nThen what is the function that the report is to play and in reference\nto what questions? For that we have to look to Article VII:\nIf the determination of the foregoing questions as to the exclusive jurisdiction of\nthe United States shall leave the subject in such position that the c\t\nGreat Britain is\nThen the Arbitrators shall determine that question.\n\"To aid them in that determination, a report of a Joint Commission,\nto be appointed by the respective Governments shall be laid before\nthem \"\u2014the next phrase I will leave till a later period of my argument\u2014\"with such other evidence as either Government may submit.\"\nIt really passes my humble capacity to see what is to be said in\nanswer to the proposition which I respectfully affirm and submit, that\nArticles VII and IX make that clear to demonstration which, up to this\nmoment, I did not think was even in controversy between us, that the\nappointment of the Commissioners, to begin with, and the report of the\nCommissioners consequent upon their appointment, was to serve one\npurpose and one purpose only\u2014to aid the arbitrators, should the contingency arise, in determining the regulations which they are to ordain.\nI am a little surprised that there should be any doubt about that. I\ncannot think there is any real doubt in the mind of any one of the\nTribunal whom I am now addressing. But of course I go further than\nthat\u2014much further than that. I say that Article VII shows, and shows\nfor a very good reason, that when you come to the question of Eegulations you are following and observing an order quite distinct from that\nwhich you are observing when you are dealing with the question of\nright, because you have got what might be called self-contained pro- I\nvisions in Article VII, showing what the Tribunal may have regard to\nin the consideration of the question of Eegulations. What is that?\nThey are to be aided by the Eeport of the Commissioners; and what\nelse? \"And this report shall be laid before them with such other evidence as either Government may submit.\"\nEeally one has a difficulty in knowing what is the construction put\nopposite to this. My friend, Mr. Phelps, says that the fallacy in our constructions depends upon the misconstruction which we place upon the\nword \"contingency\" in Article IX; and I agree\u2014for I wish to come to\nclose quarters upon the question\u2014that if my friend's construction, of\nthat word \"contingency\" in Article IX is the correct one, he has\nadvanced a long way in the support of his argument; but equally by\ncontrary if his construction is the erroneous one it is fatal to his argument.\nNow, the first thing to be observed is this: That the word \"contingency\" occurs twice in Article IX. It occurs in the first clause; it\noccurs in the later clause. Is it to be believed that it occurs in those\ntwo clauses in a different sense and that the same word used in the same\narticle 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\nnot asking for an answer. I do not think that will be urged; but what\nis its meaning in the position in which it first appears?\nI think, before I submit what the Tribunal lias of course already\nanticipated, as to the meaning which we attribute to it, it is best to see\nwhat my friend, Mr. Phelps, says about it. I am reading from the print\nof the shorthand note of the argument yesterday evening, at page 47 ARGUMENTS ON PRELIMINARY MOTIONS. 55\nof the print, at the end of the second large clause, about the middle of\nthe page: \"These reports, says the Treaty, shall not be made public\n. they shall be submitted to the Arbitrators or it shall be considered\".\nThat the contingency of their being used by the Arbitrators cannot\narise. It is said that that contingency refers to the contingency of the\ndecision.\n\"It is said\" ought also to precede the next sentence.\n\"It is said the contingency is, whether the Arbitrators shall decide\nin favor of or against the claims of right which the United States\nGovernment have set up. We regard that as altogether erroneous. It\nis the contingency of the Arbitration itself\u2014the contingency of there\nbeing any arbitration, not the contingency of the decision on the previous questions that the Arbitration shall reach, if it takes place\".\nThat meaning is sufficiently obvious; but it is made clearer if the\nTribunal will refer to page 50, the last sentence but two at the bottom\nof the page. You will observe, sir, the sentence beginning \" Does it\nrefer \".\n\" Does it refer, as my learned friend will contend, to the contingency\nof the Tribunal deciding against the United States oh the five questions\nthat are first propounded, or does it refer to the contingency of there\nbeing any arbitration at all?\"\nThat is it say, those who argue on behalf of the Government of the\nQueen contend that it depends on the contingency of the decision in a\nparticular way of the five questions. \"I\", says Mr. Phelps, representing the United States, \" contend that the contingency referred to is the\ncontingency of there being any arbitration at all\". The issue is therefore clearly joined between us. My learned friend has stated with great\nclearness, what he means is the construction. He adopts one construction; we adopt the other.\nAnd finally, the last reference I shall trouble you with, Sir, is the last\nparagraph but one on page 51, of the short hand reports where, there\nis an interruption by one of the Tribunal putting a question. My friend\nhas concluded the sentence which ends, or begins a paragraph, I am\nnot sure which:\n\"If the Commissioners agreed, there would be no occasion for any\nArbitration.\"\nThis is still following out the idea that the contingency twice referred\nto in Article IX referred to the contingency of there being no Arbitration at all.\n\"If the Commissioners agree,\" says Mr. Phelps, \"there would be no\noccasion for any arbitration\". Then Lord Hannen asks the question.\n\"Where is that embodied in the Treaty? Is it anywhere embodied in\nthe Treaty, that if the Commissioners agreed the Arbitration would\nnot go on?\"\nThis is a very pertinent matter. My learned friend's answer is.\n\"No, your Lordship, it is not.\"\nNow, therefore, the question is the question that is decisive in this\nmatter, as it seems we both think.\u2014What is the meaning of the word\n\"contingency\" in Article IX?\nNow, let me guard myself upon one matter of construction. This is\n* a question of the construction of the Treaty; and although I do not\ndeny that on points where the Treaty is ambiguous it may be, and has\nbeen so regarded by previous tribunals constituted like this, admissible\nto refer to the negotiations which led up to the Treaty, in order to define\nthe subject matter of the Treaty, the subject-matter referred to the\ntribunal, etc., I deny that where the Treaty itself is clear and unam- 56 ARGUMENTS ON PRELIMINARY MOTIONS.\nbiguous, that the reference to what Lord Salisbury may have thought\nor said or written in his Cabinet, the question of the Treaty being a\nmatter of royal prerogative and therefore of executive action in Great\nBritain, can be invoked in the construction of the Treaty; and equally\nwe know that by the Constitution of the United States the head of the\nexecutive there cannot bind the country by a Treaty, but that it must\nbe 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\nor that Senator in the view that he took in giving his vote for or against\nthe affirmation of the treaty than we have to do with the thoughts,\nopinions, writings, sayings of Lord Salisbury discussing the matter with\nhis colleagues or conveying his views by diplomatic correspondence to\nthe representatives of the Crown in foreign countries.\nThen is this clear? Is it a matter of doubt what this \"contingency\"\nmeans? Let us see the connection in which it is used:\n\"The Contracting Parties have agreed to appoint two Commissioners\nto report on the part of each Government to make the joint investigation and to the end that the joint and several reports and recommendations\u2014\"\nCan it be supposed that the recommendations had anything to do\nwith the question of decision and legal right?\n\"of said Commissioners may be in due form\u2014\"\nWhat? I\n\" submitted to the Arbitrators, should the contingency therefor arise.\"\nIt is not submitted to a tribunal of arbitration ex post facto to be\nconstituted, but it is submitted to the Tribunal which by this Treaty\nis constituted; and therefore to suggest that it was in the contemplation of the parties to this Treaty that the contingency referred to, as to\nthere being arbitration at all, cannot be supported with any show of\nreason whatever. The Tribunal is constituted by this Article.\nBut is there anything further to make that clear? If my friend is right '\nin his contention, it follows that it was also contemplated that if the Commissioners should agree in their report\u2014and that is what my learned\nfriend does not shrink from saying\u2014that if the Commissioners should\nagree in their report, there is to be no arbitration at all. There are\ntwo answers to that. The first answer is that which you will already\nhave gathered from my argument on another point; namely: that the\nCommissioners had nothing to do with the questions of right, and\nthat Article VI expressly stipulates that there shall be a distinct decision by the Arbitrators upon those five questions. That is answer\nnumber one.\nAnswer number two, equally clear and equally conclusive: That if\nthe Commissioners had agreed in their report, and had agreed in their\nrecommendation, not only does this Treaty not make it obligatory upon\nthe Arbitrators to accept and act upon that report, but it in express\nterms shows what was to be the relation of that report to their consideration, and to their decisions on the question of regulations. Article\nVII has in express terms said that the report of the Commissioners\nwas not to rule them, was not to be a matter which they were to adopt\nas a matter of course, without exercising their own judgment upon it,\nbut was a matter to aid them in their determination upon the question\nof regulations.\nTherefore my answers, as I submit, are clear and complete. It was\nnot the contingency of there being an arbitration at all, for the two\nreasons I have given, which I hope I have made intelligible to the\nTribunal, and which I do not desire to repeat. ARGUMENTS ON PRELIMINARY MOTIONS 57\nThe contingency was the contingency of the five questions being\ndecided in the fashion which should render the concurrence of Great\nBritain necessary. That was the contingency contemplated in the first,\nas it was the contingency contemplated in the last part of Article IX.\nIndeed, the latter connection in which the word \"contingency\" is\nused even more strongly makes the force of this contention which I am\nsubmitting apparent, because the words are: \"These reports shall not\nbe made public until they shall be submitted to the Arbitrators, or\n(until again understood) it shall appear that the contingency of their\nbeing used by the Arbitrators cannot arise.\" Not the contingency of\nthere being an arbitration, which arbitration by the preceding provisions is already constituted.\nIf it had not been for the introduction of certain other topics, I\nshould, Sir, have felt myself justified in sitting down; but I suppose\nthat I ought to refer to the other topics that have been dealt with by\nmy learned friend.\nLet me, however before I leave these Articles, make some reference\nto a very\u2014if I may respectfully say so\u2014acute comment thrown out by\none of the members of the Tribunal, a comment which I confess seems\nto me, as far as I can judge, to be well founded in one particular. I\nunderstood that comment to amount to this\u2014I do not regard it as the\njudgment even of the individual member of the Tribunal; but I understood it to mean; that the report contemplated by Articles VII and IX,\nto be a report within the meaning of those Articles, ought to be a\nreport which might turn out to be a joint or a several report, but which\nwhether a joint or a several report, should be founded upon a joint investigation. I understood that to be the suggestion.\nSenator Morgan.\u2014I intended to put that as an inquiry.\nSir Charles Eussell.\u2014I am not at all sure that that is not perfectly\nsound. I am not at all sure that when we come to examine these reports\nof the Commissioners on both sides it will not be found that they will not\nstand 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.\nMr. Justice Harlan.\u2014I suppose you are familiar with the report\nnow being talked of\u2014the supplemental report?\nSir Charles Eussell.\u2014Yes.\nMr. Justice Harlan.\u2014Can you tell us\u2014for we have not yet had it\nbefore us officially\u2014whether it is a separate report, based upon the\njoint investigation that was made in 1891, or is it a report based upon\na subsequent independent investigation in which both Commissioners\nparticipated?\nSir Charles Eussell.\u2014As far as I can judge, partly on one, and\npartly on the other. My learned friend said that he had not read, the\nreport; and indeed in the letter by which the United States Agent, my\nfriend Mr. Foster returned the report, it was stated that it was unread.\nThat being so, my learned friend Mr. Phelps said that somebody or\nother who I do not know, has told him that it contains a number of\nnew depositions. All I can say is that it is not an accurate description\nof it.\nLord Hannen.\u2014Sir Charles, will you allow me to call your attention\nto 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\nwords \"with such other evidence as either Government may submit\"?\nSir Charles Eussell.\u2014I am coming to that, sir.\nLord Hannen.\u2014I beg your pardon. 58 ARGUMENTS ON PRELIMINARY MOTIONS.\nSir Charles Eussell.\u2014I had not at all forgotten that; and I am\nnow leading up to it, as you will see in a moment.\nI was considering at the moment what one of the Tribunal said as to\nthe necessity of these reports being founded upon a joint investigation,\nalthough they might be separate reports. I would like further to point\nout that I do not myself think that it was intended\u2014but I do not\nmyself see that these reports were intended to be invested, I do not\nuse the words in any way profanely, with any peculiar character of\nsanctity, or that any very peculiarly great moral weight was necessarily to be given to them beyond what their intrinsic contents would\njustify. I have pointed out they were to be mere aids to the Tribunal.\nThey were not to be the rule for the Tribunal. They were to assist the\njudgment of the Tribunal, not to dictate what that judgment should\nbe; and here I immediately come to the point suggested by Lord\nHannen.\nIf that be so, it becomes entirely unimportant;\u2014and this I say in\nfavor of the United States Commissioners' report as well as in support\nof the Commissioners of Great Britain\u2014it becomes comparatively\nunimportant to inquire whether these reports were founded upon a\njoint investigation or upon several investigations. They may have\nfailed to comply with the direction given in Article IX; but if they\nsupply means of information to enlighten the judgment of this Court\nupon the subject of regulations, with which alone they are conversant,\nthen they come under the head of \"any other evidence which either\nGovernment may submit;\" and I do not shrink from putting my proposition as high as this: that up to the last moment, when discussion is\ntaking place on the subject of regulations, if either party can put\nbefore 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,\naccording to the authority inherent in you, when the point has been\nreached when you desire to retire to your chamber and consider the\nquestion of regulations; but I say up to that moment\u2014I put it as high\nas that;\u2014you ought to seek, and you certainly would be entitled to seek,\nfor any information which can be put before you by either the representatives of the United States or the representatives of Great Britain\nwhich may help your judgment upon the question of regulations.\nNow the answer which my learned friend makes and that upon which\nhe bases his argument, is upon the ground of what he has been pleased\nto call manifest injustice. Indeed, I think he said \" outrageous injustice \". I think he used both expressions. That does lead me, really to\nask the Tribunal to consider what is the constitution of their own body.\nI have pointed out that it is undoubtedly clear that as regards certain\nof these questions, which I have denominated and again, for brevity,\ndenominate questions of right, they are simply to decide as judges and\nas jurists. I reaffirm that proposition; but when I come to the further\nquestion 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\nUnited States, to the Appendices to the Case of the United States, to\nthe Counter Case of the United States, and to the Appendices to the\nCounter Case of the United States, in order to show you and. make it\ndemonstrable that there is, in the view of those who represent that\ngreat community, and that there is, according to the constitution of\nthis Tribunal, power to lay before this Tribunal what is not legal evidence in a court of justice. We have\n>fd\nt had the opp\nopportuu\nworthine\nand yet\nity\n88 \"\nof inquiring i\n\u2014to use my le\nare\u2014because\nshould, i\n11(1\nbecause the\nastitution of this Tribunal contemplates\nall that, quantum valeat. shall be regarded\nby this Tribunal, this Tribunal weighing\nand really in view of what I must be permitted to call the extravag:\nexpressions of my learned friend Mr Phelps as to the iniquity of i\nputting something forward which they have had no opportunity\nanswering, I do not understand how my learned friend can reconcil\nto his moral sense to put before this arbitration the mass of mat\nwhich is to be found in the Counter Case, and which we have had\nopportunity of answering.\nNow let me make clear to the Arbitrators what I mean by thi\nought, to tell you how it is said this is justified. It is said that thi\nby way of answer to the Case of Great Britain. Well of course t\nis a mere facon de parler. None of it purports to be in answer\nspecific allegations in the British Case, and it only needs reference\nany part of this book to see that if there be injustice of the kind wh\nmy learned friend insisted upon, it relates to all that portion of\nUnited States Counter Case which I have separated from the rest i\nwhich runs with the exception of a few pages from page 135 to the <\nof the volume, what do I find there. I find there reports, amon\nothers\u2014I am merely taking these as illustrations\u2014of a Captain Hoo\nmade in August of 1892, September of 1892, one of a Captain Couli\nof the 6th September 1892, one of a Mr. Evermann of the 28th Sept<\nber 1892, one of Mr. Stanley-Brown of the 16th December 1892, an\nfind depositions of a number of witnesses whom we never heard, wh\nwe have had no opportunity, I need not say of cross-examining or\ninquiring into, extending from page 300 odd on to I think page 4\nTherefore really this cry of injustice is as I conceive not in fact y\nfounded. But I want to go a little further. It is said by my frie\nnot only is this Supplementary Eeport offered in evidence, but il\noffered in evidence under circumstances in which it is sought as a s\nplementary Commissioners Eeport, to give it a special sanctity\ncharacter. I think the expression my friend used was \" to put it o\nhigher plane \". Let me absolutely and at once disclaim any such s\ngestion. I claim no special value by the reason of the fact that th\nvalue,\nother weight than the intrinsic merit of the thing itself demands.\nThus I come back to my idea of a few moments ago, that we seek to 60 ARGUMENTS ON PRELIMINARY MOTIONS.\nput this in evidence which under Article VII may be received by this\nTribunal under the title of \" such other evidence as either Government\nmay submit,\" and let me say that I do not recede from, but stand by,\nwhat 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\nrequires, the five questions of right, raised for your distinct decision,\nit is within the competence of this Tribunal to receive any evidence\noffered by either Government which has any valuable light upon and\nin relation to the question.\nThe President.\u2014Do you construe this as meaning legal evidence\nor information?\nSir Charles Eussell.\u2014Information merely.\nThe President.\u2014Not legal evidence.\nSir Charles Eussell.\u2014Not legal evidence.\nThe President.\u2014The words are, \" with such other evidence as either\nGovernment may submit.\" You do not construe that as implying legal\nevidence.\nSir Charles Eussell.\u2014No, Sir.\nLord Hannen.\u2014None of this was legal evidence, because it would\nnot be subject to cross-examination.\nSir Charles Eussell.\u2014Not subject to cross-examination.\nThe President.\u2014The construction goes rather far. One would like\nto know how far it goes, and how far it does not go.\nSir Charles Russell.\u2014Certainly, Sir. Let me make that position\nclear because I think it lies at the very root of this matter. If this is\na matter which at all weighs upon the mind of the Tribunal, or of any\none member of the Tribunal, I would desire to enlarge upon it, and to\nenlarge upon it simply by saying that there is no part of the evidence\nsubmitted on one side or the other which is legal evidence. The United\nStates has no legal evidence.\nSenator Morgan.\u2014Why is it called \" evidence\" then?\nSir Charles Eussell.\u2014Because it is evidence. It is called evidence because it is evidence.\nSenator Morgan.\u2014Without being legal.\nSir Charles Eussell.\u2014Without being legal certainly.\nThe President.\u2014Even for the legal points.\nSir Charles Eussell.\u2014Even for the legal points. So far as the\nlegal points are concerned our position, and I must enlarge upon that\npresently, is clear. We say, as regards the first four questions, namely\nthose relating to what I have called the derivative title, or the title\nfounded upon estoppel, that they involve no questions of law that are\nreally 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\nthose who represent the United States, and those who represent Great\nBritain.\nMr. Justice Harlan.\u2014What questions are those?\nSir Charles Eussell.\u2014The first four. They depend upon construction of public documents, and upon historical facts\u2014those first four questions. As regards the 5th question, there I agree there is a difference.\nWe come there, undoubtedly to vexed questions, but in our submission\nand in our judgment\u2014and it is the position we have taken in the original Case, and the position that we adhere to\u2014so far as they depend\nupon 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\nquestion 5 depends. .\nSenator Morgan.\u2014Do you mean Municipal law, or International laiof ARGUMENTS ON PRELIMINARY MOTIONS. 61\nSir Charles Eussell.\u2014I mean both. It is anticipating; but as the\nmember of the Tribunal has mentioned that, I may perhaps avail myself\nof the opportunity of pointing out that the title to property cam only have\nits root of title in Municipal law.\nSenator Morgan.\u2014That is what I understand your Counter Case to\ncontend for.\nSir Charles Eussell.\u2014Yes, it can only have its root of title in\nMunicipal 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\u2014which Municipal law\nis to rule. It may be that International law may have an important\nvoice in saying what are the sanctions which International law will recognize in relation to the rights of property within Municipal law.\nIt may be also that International law, where the Municipal laws conflict, will decide between them. The law of America, as you all know,\nfinds its source and derives its strength and its history from the Common law of England. The Municipal law of each country is the same;\nand the root of title to property must depend upon Municipal law; and,\nwhere 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.\nMr. Justice Harlan.\u2014Whether it depends on Municipal law or\nInternational law, how far does the question of the right of property\ndepend upon the facts of seal life?\nSir Charles Eussell.\u2014I have said that, in my judgment, so far as\nthe facts of seal life are material for the question of law as to property\nin seals, they are not in dispute.\nMr. Justice Harlan.\u2014When we come to determine the question\nwhether the United States has any right or property in these seals or\nin the herd, do we consider and ought we to take into consideration the\nfacts in seal-life?\nSir Charles Eussell.\u2014Certainly. So far as they are material, certainly.\nThe President.\u2014I think we had better leave that for the moment\nand argue on the points now before us.\nSir Charles Eussell.\u2014I should say so. I have been led away\nfrom my argument.\nMr. Justice Harlan.\u2014The question which I put to Sir Charles Eussell was exactly in the line of the argument that he was making.\nSir Charles Eussell.\u2014Quite so, Sir. I hope nobody thinks that\nI complain of any question or interruption.\nThe President.\u2014I think, Sir Charles Eussell, you rather swerved\nfrom the original plan of your argument.\nSir Charles Eussell.\u2014Well, Sir \" swerving,\" rather implies \"shying\" from it.\nThe President.\u2014No.\nSir Charles Eussell.\u2014I have been a little induced to go out of\nthe line but I have not swerved from the proposition.\nThe President.\u2014I do hot say that the fault was yours.\nMr. Justice Harlan.\u2014Sir Charles Eussell was discussing the question of the right of property, and upon what it rested.\nSir Charles Eussell.\u2014Do not for a moment, Sir, suppose that I\ncomplain. I do not.\nMr. Justice Harlan.\u2014And the question I propounded to him was in\nthe exact line of his argument and I did not intend at all to swerve\nhim from that line of argument or to divert him. It is exactly in the\n-\u00bb 62 ARGUMENTS ON PRELIMINARY MOTIONS.\nline of the question which he is discussing and which we are to consider.\nSir Charles Eussell.\u2014Well, Sir, may I be excused from making\nany comment on that; beyond saying that I do not at all complain\nwhether it was in the line of my argument or whether it was not in the\nline of my argument.\nMr. Justice Harlan.\u20141 did not understand you as complaining.\nSir Charles Eussell.\u2014No, not at all; but I was in this, sense taken\naway from the point which I was upon,\u2014the point of what is the meaning of the word \" evidence\". I did not anticipate that I should be\ncalled upon to go into this question etymologically; but I think as it\nhas been adverted to, perhaps the readiest answer and the most practical answer is to state this broad proposition, that there is no part of\nthe so called evidence in the United States Case, in the Appendix to\nthe United States Case, in the United States Counter Case,\u2014excepting\nalways documents of a public character,\u2014there is in the whole mass of\nit not one item that would be legal evidence in a Court of Justice over\nwhich any of the distinguished judges who are here might preside if he\nwere either in America or in Great Britain. In other words, the volume\nof material that has been put before the Court satisfies none of those\ntests,\u2014amongst others the great test of cross-examination,\u2014which\naccording to the systems of judicature prevailing both in England and\nin United States would make it receivable as strictly legal evidence if\ntendered. Now I hope I have conveyed my meaning.\nWell then if that is so, I think the Tribunal will see\u2014I think you,\nSir, cannot fail to see,\u2014that when you are dealing with two countries\nwhose system of law and judicature is substantially the same, and\nwhen they have by the preparation of their Case and their Counter\nCase and their Appendices treated as matter of an evidenciary character to be put before this Tribunal matter which does not come up to the\ntest of legal evidence, the word \" evidence\" in the seventh Article does\nnot mean evidence which a Court of Law in either Country would\nreceive if strict objection were taken.\nBut now, Sir, I have not yet, I am afraid, concluded. If I am right,\nthe 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\nalone the Tribunal are competent to consider the question of regulations,\nthen they are entitled to avail themselves of any class of evidence within\nthe wide description I have given to it to aid them in that question of\nregulations, and that evidence may be submitted on the part of either\nGovernment. And in connection with the right of either government\nup to the last moment to lay any matters before this Tribunal upon the\nquestion of regulations, let me point out two things. First of all you\nare aware, because it is part of the Treaty of Arbitration, and referred\nto in the Treaty of Arbitration, of one of the matters which comes\nbefore you ultimately for determination, namely, certain claims under\nthe modus vivendi of 1892. The modus vivendi of 1892 is I presume in\nyour minds.\nThe President.\u2014Yes. We have a special Treaty for the modus\nvivendi.\nSir Charles Eussell.\u2014Quite right.\nSenator Morgan.\u2014It is hardly a special Treaty, it is made a part of\nthe Convention.\nSir Charles Eussell.\u2014It is made a part of the Convention but it\nis of a separate date and in a separate document. ARGUMENTS ON preliminary moth\nSir Charles Eussell.\u2014I have no doubt, Sir, that you are right.\nThe President.\u2014It is part of our law\u2014I mean the law which institutes this Tribunal.\nSir Charles Eussell.\u2014Quite. It is immaterial except to point\nout that the Treaty of Arbitration is dated 29th February, 1892, and\n. the Modus vivendi or convention is the 18th of April, 1892. I am not\nchallenging the correctness, of course, of what you say on the matter.\nThe point I am upon is different.\nThe President.\u2014Both were ratified together.\nSir Charles Eussell.\u2014So, Sir, it has just been stated.\nThe President.\u2014The ratifications were exchanged together.\nSir Charles Eussell.\u2014I point out that under Article IV, in order\nto facilitate-proper enquiries on the part of Her Majesty's Government\nwith a view to the presentation of the case and arguments of that Government before the Arbitrators, it is agreed that suitable persons will\nbe permitted at any time, upon application, to visit or remain upon the\nseal islands during the sealing season for that purpose. That is April\nof 1892.\nThe President.\u2014The 18th of April, 1892, is the date of the Treaty.\nSir Charles Eussell.\u2014That I have stated, Sir,\u2014the 18th of April,\n1892. What I want to point out, Sir, is that all the complaint of my\nfriend here is that we were bound to set out in our original Case all that\nwe had to say\u2014all that we had to say both on the questions of right,\nand upon the questions of Eegulations. You recollect that. That is\nmy 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\nnot remind you\u2014You know enough of the history of the case to know\u2014\nthat the period as to which it is important, and the only important\nperiod in order to judge of the characteristics, so far as they are material,\nof seal life in the islands is the breeding season, June, July, August\nand September, and that those are the four months within which are\nembraced the fullest, the best, and the most complete opportunities for\nthe inspection of seal life. And yet, my friend's contention is that even\nupon the question of regulations we were to be bound to deliver a Case\nby the 3rd of September of 1892. When you recollect the remoteness\nof Alaska to begin with, and the remoteness of Pribilof Islands from\nAlaska, it is obvious that it was contemplated by these parties that\nthere should be a much extended opportunity, so far certainly as questions of regulation were concerned, of affording such information, and\nsuch assistance to this Tribunal on the question of regulations as a\nprolonged enquiry might give them.\nSenator Morgan.\u2014But did not the 60 days which you had a right to\nclaim amply provide for that?\nSir Charles Eussell.\u2014No, I do not know that that would necessarily provide for it all, Sir, supposing they had extended it 30 days\nmore, which is the period.\nMr. Carter.\u2014-60 days.\nSir Charles Eussell.\u2014To begin with, Sir, the period which is contemplated for extension is 30 days additional, not 60.\nSenator Morgan.\u2014Not exceeding 60 days.\nSir Charles Eussell.\u2014I say, Sir, that is an additional 30 days,\nnot 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.\nfriend's contention is that all this ought to have been in the Original\nCase. You follow, I think, that that is an answer to the objection. In\nother words the case is to be delivered according to the terms by the\n3rd of September, though we only got our authority to send to these\nIslands under this Article in April of 1892. We get our authority\nunder the Convention in April of 1892.\nSenator Morgan.\u2014Was anyone sent to the Islands?\nSir Charles Eussell.\u2014Oh yes, and his Eeport appears in the\nCounter Case.\nSenator Morgan.\u2014He got there?\nSir Charles Eussell.\u2014Oh yes\u2014they were sent by both sides, and\nboth sides have submitted these Eeports in their Counter Case. Both\nhave done the same thing. My friends, as clearly as we have, have\ndeparted from the idea, that the whole case was to be put out in the\noriginal Case. They have chosen, of course, to say that a great deal in\ntheir Counter Case which is new is by way of answer, but then you can\nsay that anything is by way of answer. It is strictly correct in sense\none\u2014everything may be said to be by way of answer, but only in that\nsense. But the question of Eegulations stands upon an entirely different footing, which I have endeavoured more than once to make clear,\nand if I have not succeeded in making it clear up to this point, I should\ndespair of making it clear by any mere process of discussion.\nBut now, Sir I want to refer to another matter. My friend Mr. Phelps\nsays \" Oh but there is another objection that I have to the admissibility\nof this Supplementary Eeport\"; and that objection he says is this: the\nArticle provides for a Eeport, if they can agree, to be made jointly\u2014\nif they cannot agree, for joint and several Eeports; and he says, having made one Eeport, which we have already furnished to them under\nthe circumstances which I will explain, they cease to be vested with\nauthority to make any other Eeport. They became fundi officio, my\nfriend would say. Well, Sir, I do not care to stop to consider even that\nquestion. I myself do not see any reason why they may not make\nseveral Eeports if they are so minded. I do not see anything in the\nTreaty which compels them to exhaust their functions in one Eeport;\nbut 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\nfrom the Commissioners,but as being evidence\u2014\"other evidence\" within\nthe meaning of Article VII directed and intended to inform the minds\nof this Tribunal upon the question of Eegulations when and if that\nquestion shall arise.\nSenator Morgan.\u2014But, Sir Charles, it might still be evidence might\nit not, and not have found its way into the record in due season according\nto the Treaty.\nSir Charles Eussell.\u2014Perfectly, that is my whole contention, Sir.\nYou have put, in one sentence, my whole contention, that, as regards the\nquestions of Regulations, there is, as contained in Article VII, provision\nichieh has not relation to the rest of the Case; that is to say, when the\nArbitrators come to exercise judgment, which is not judicial, tohich is not\njuristical, then they are to seek such evidence as either Government can\nplace at their disposition\u2014any matter which will have the tendency to affect\nor help their judgment upon the question.\nSenator Morgan.\u2014I beg to say that I have been misunderstood if I\nam 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\ncertain time.\nSir Charles Eussell.\u2014I am not sure that I follow you, Sir. ARGUMENTS ON PRELIMINARY MOTIONS. 65\nSenator Morgan.\u2014I say that I have been misunderstood if I have\nbeen supposed to insist that the power to ordain Eegulations exists\nonly upon certain conditions and at a certain time,\u2014if Counsel will\nallow me to say so\u2014if this Tribunal should come out with an award\nin which the Eegulations should be adopted or established, and the\n\u2022 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.\nSir Charles Eussell.\u2014I am not prepared to say, Sir, that the\naward requires the recital of any conditions.\nSenator Morgan.\u2014If it does not then it rests with the Tribunal to\nsay whether the conditions have occurred, and at what time they will\ndecide the matter.\nSir Charles Eussell.\u2014 Undoubtedly, always as far as the Treaty\ndoes not in express terms state the way in which those questions are to\nbe dealt with.\nLord Hannen.\u2014The Tribunal is required to find on those five\nquestions.\nSir Charles Eussell.\u2014No doubt.\nSenator Morgan.\u2014Not as a condition precedent.\nSir Charles Eussell.\u2014As a condition precedent.\nSenator Morgan.\u2014I insist the other way.\nSir Charles Eussell.\u2014I am afraid now that I must make the\ncharge that 1 am being diverted from the point that I was making.\nSenator Morgan.\u2014I understood that Counsel quoted me as having\nsaid the est-ablishment of the condition precedent was a necessary foundation of the jurisdiction and power of this Tribunal to make the Award on\nthe determination of Regulations.\nSir Charles Eussell.\u2014My learned friend, Mr. Phelps, may have\nso cited you, that I do not recollect, I certainly did not, and I do not\nthink my learned friend did either. I content myself with reading what\nis 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.\nSenator Morgan.\u2014In their final Award\"*.\nSir Charles Eussell.\u2014I will come to the question of the final\nAward, or interlocutory Award in a moment, that is not the point I am\nupon,\u2014they shall give a distinct decision on each of those five questions.\nSenator Morgan.\u2014But only one Award.\nSir Charles Eussell.\u2014I will come to that in a moment, but that\nthey shall give a distinct decision, I, for the third time, repeat on those\nfive questions, and, it is only if the determination of those five questions shall leave the subject in a condition in which the concurrence of\nGreat Britain is necessary, then and then only, the Eegulations are\nnecessary, and, whether a particular member of this Tribunal thinks so\nor not, that is my very respectful, clear and resolute submission.\nSenator Morgan.\u2014I was merely setting myself right about it, as\nCounsel have alluded to the subject, I must say I have not intimated\nthe subject to be considered was anything less than the subject as to the\npreservation of seal life, not in Behring sea, but in any waters to which\nthey might resort.\nSir Charles Eussell.\u2014I think that latter observation is not germane to the matter in controversy now, but, as it has been adverted\nto, when the proper time comes, I shall hope to demonstrate that the sole\narea of dispute from the first moment the dispute arose down to the last\nmoment, was Behring sea, and Behring sea only. But I do not wish to\nbe led away at this moment. Q6 ARGUMENTS ON PRELIMINARY MOTIONS.\nI must advert, still trying to bear in mind the point I was upon, to\nthe suggestion of my learned friend that the Commissioners after they\nmade their first Eeport were fundi officio. I have told the Tribunal\nwhy I did not think that important, because I do not ask this Tribunal\nto attach any peculiar character or importance, or to place this Supplemental Eeport upon any higher plane, than any other evidence that\nmight be offered to them for the question of Eegulations with which\nalone it is conversant.\nThe President.\u2014You mean that you put the Supplementary Eeport\nupon the same plane as the first?\nSir Charles Eussell.\u2014Well, I myself think it is not upon any very\nhigh plane and I will tell you why. Let me point this out.\nThe President.\u2014As to Article IX?\nSir Charles Eussell.\u2014Let me call your attention to this Article\nIX: \" The four Commissioners shall, so far as they may be able to agree,\nmake a joint Eeport to each of the two Governments, and they shall\nalso report either jointly or severally to each Government on any points\non which they may be unable to agree.\" Then I want to know, is a\npeculiar sanctity or importance to be given to the Eeports in which\nthey differ, according to whether they come from the United States or\nGreat Britain? The very fact that they are, as the event has turned\nout to be, and as one might well have supposed it would be, unable to\nagree in the Eeport, and take different views, and report in different\nlanguage according to the stand point they take,\u2014you cannot extend\nto two sets of discordant and disagreeing Eeports,\u2014you cannot to each\nextend any peculiar sanctity or place them on any peculiar plane.\nEach must stand on its merits, and the premises on which it is based\nand the value the Tribunal thinks in the consideration of those Eeports\nthey respectively deserve,\u2014no more and no less, and all this about\nspecial sanctity, or peculiar character, or high plane, or low plane, may\nbe dismissed from this controversy as of no real moment whatevi|H|\nThe Treaty is contemplating Eeports as wide asunder as the poles, and\nyet you are supposed to impart equal sanctity, and place each on an\nequal plane free from criticism. All is to go before the Arbitrators, if\nthey disagree, the Arbitrators are to say to which they give effect, and\nhow far they are to give effect.\nI still have not said what I want to say on the fundi officio point. It\nis this. That my learned friends did not themselves conceive that their\nCommissioners were fundi officio when they made their first Eeport, is\nclear, because my learned friends will find that they have under a different date included in the documents which they have put in their\nCase, three Eeports of different dates from their Commissioners. Very\nwell.\nNow I pass from that which I consider a very small point.\nMr. Phelps.\u2014One is the joint Eeport.\nSir Eichard \"Webster.\u2014No, they are separate Eeports.\nSir Charles Eussell.\u2014If the joint Eeport is to be regarded there\nare three. There is the joint Eeport which may be said to be a Eeport\nin which the United States and British Commissioners agreed to differ,\nand two separate Eeports by the United States Commissioners besides.\nNow, it remains for me, before finally leaving this question of the\nmeaning 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\nGreat Britain to elaborate by further enquiry and examination this\nquestion of seal life so far as it had an important bearing either on the\nquestion of property, or upon the question of Eegulations. as having a most material bearing on Article VII. You are aware that\nthe Convention of 1892 was the second Convention in the nature of a\nmodus vivendi. You are aware that under the first Convention, as\nunder the second, restrictions were submitted to by the United States\nas to the extent of its slaughter of seals upon the Islands themselves,\nand that the citizens or subjects of Great Britain submitted to restrictive regulations of a severe kind upon the question of pelagic sealing.\nIs 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\nof temporary arrangements did throw any useful light upon the question of what Eegulations should be ordained by this Tribunal, that this\nTribunal is to be shut out upon that question of Eegulations from the\nconsideration of that which would have a clear and a direct bearing\nupon what ought to be the exercise of their discretion in the matter of\nEegulations itself? I repeat it might be, I do not affirm that it was,\nbut 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\nthe most valuable light on the character of the Eegulations which this\nTribunal should ordain; and I say again, and it is the last observation\nthat I shall make on that topic, that I do not the least recede from the\nposition which I submit is an invulnerable one, that on the question of\nEegulations this Tribunal has no right to shut out from its consideration, upon its merits, any evidence offered by either Government up to\nthe very moment that this Tribunal retires to consider the questions of\nEegulations.\nNow I have one more duty to discharge before I sit down, and that\nis to show that the positions which I have taken up in this argument\nare the positions which the Government of the Queen took up in its\noriginal Case; that it is the position which it maintained when the discussion arose in the interval between the original Case and the Counter\nCase; and I do that not merely to prove the consistency of our positions,\nbut to show to this Tribunal that the United States fiepresentatives\nhad from the first to the last notice of the plan which we were in good\nfaith and with deliberation pursuing. I refer first in that connection\nto the Case originally presented. You will recollect that that case was\npresented on the 3rd of September, 1892, and at page 10 of that Case,\nthe 5th Question of property and protection, is referred to, and those\nwho prepared the Case proceed thus: 68 arguments on preliminary motions.\nI do not stop to consider whether the advisers of the Queen were right,\nor whether they were wrong in that position. Their view was that this\nwas a claim, and is a claim, novel and unprecedented, that the onus\nlay upon those who put forward a claim so novel and unprecedented, to\njustify it by facts and by arguments, and that the onus was not upon\nGreat Britain to disprove\u2014the onus was on the United States affirmatively to prove.\nThen 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\npostponed until the decision of the Tribunal has been given on the\nprevious questions. Beyond, therefore, demonstrating that the concurrence of Great Britain is necessary to the establishment of any\nEegulations which have for their object the limitation or control of the\nrights of British subjects in regard, to seal-fishing in non-territorial\nwaters, it is not proposed to discuss the question of the proposed Eegulations, or the nature of the evidence which will be submitted to the\nTribunal.\" That is at pages 10 and 11 of the original Case. On page\n135, Chapter VIII, of the same Case, in relation to the question of property and protection, it is there stated: \"The claim involved in this\nquestion is not only new in the present discussion, but is entirely without\nprecedent. It is, moreover, in contradiction of the position assumed\nby the United States in analogous cases on more than one occasion.\nThe claim appears to be in this instance made only in respect of seals,\nbut the principle involved in it might be extended on similar grounds to\nother animals ferw naturw, such, for instance, as whales, walrus, salmon\nand marine animals of many kinds.\" And then it proceeds to say\nthat these being admittedly animals ferw naturw, it was the duty of the\nUnited States if they sought to make a claim to property in relation to\nthem to establish their grounds consistently with a Municipal law of\ntheir own or any other country.\nThen that subject is dismissed with this final note. \"In the absence\nof any indication as to the grounds upon which the United States base\nso unprecedented a claim as that of a right to protection of or property\nin animals ferw naturw upon the high seas, the further consideration of\nthis claim must of necessity be postponed; but it is maintained that,\naccording to the principles of International law, no property can exist\nin animals ferw naturw when frequenting the high seas\". And finally,\nin relation to Eegulations, which is the matter which I have more '\nimmediately in hand, it proceeds\u2014\" Great Britain maintains, in the\nlight of the facts and arguments which have been adduced on the\npoints included in the 6th Article of the Treaty, that her concurrence\nis necessary to the establishment of any Eegulations which limit or\ncontrol the rights of British subjects to exercise their right of the pursuit and capture of seals in the non-territorial waters of Behring sea.\nThe further consideration of any proposed Eegulations and of the evidence proper to be considered by the Tribunal in connection therewith\nmust of necessity be for the present postponed \". It is clear therefore,\nwhat was the position (it cannot be doubted) bond fide taken up by the\nrepresentatives and advisers at that time of the Crown as to the\nproper position in this question.\nThen we come to the correspondence which took place between Mr.\nFoster and the representatives of the Queen in Washington in September 1892, after the Case has been delivered. Mr. Phelps has already\nreferred to this matter, but I must follow it up. The pith of Mr. Foster's '\ncomplaint is contained in the second paragraph of that letter, and I am IS ON preli\nthe Quee\nn, Volume I, p\nage 1. \u00abI an\nBritish C\nthe Tribunal\nlargely, a\nthe ques\nor propei\niting the\nion submitted\nPribiloff Islan\nit entirely, de\nby the Treat\nds in Behring\nspo\n, Mr.\nid if I c\nnot think he did; I thought he did, but he\nwhich Mr. Foster thinks it right to make,\nCommissioners, the Commissioners of Hei\nmade up their Eeport not according to the\nact that the United\nid with the United\nuld be au answer to\nled to agree.\" That\nihat the British Corn-\ndishonourable thing,\n.\u2022ived it right to make\nparty that in taking its evidence-in-chief,\nthe possession of all the evidence on the other side, as also that in\nmaking up the Eeport of its Commissioners it should first be provided\nwith that of their colleagues representing the other Government in\nrespect to those points upon which they ]\nsuggestion, of course, means what I havi\nmissioners were going to do a dishonest\nthat instead of making their Eeport as th\ntheir Eeport, they were going to make a Keport winch was an answer\nto the Eeport with which they had already been furnished by the\nUnited States.\nNow, I respectfully commend to this Tribunal the perusal of Lord\nEosebery'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\nfor me to say, but I have listened with the attention it deserved to the\nargument of my learned friend Mr. Phelps and I did not detect that\nhe had discovered any flaw in that argument of Lord Eosebery. Let\nme call your attention to what he says. At the top of page 5 he says,\nafter drawing the distinction between the character of the questions.\n\" It will be noted that the seventh article of the Treaty refers only to\nthe Eeport of a Joint Commission, and it is by the ninth Article alone\nprovided that the joint and several reports and recommendations of\nthe Commissioners may be submitted to the Arbitrators, should the\nwhich the Eeport or Eeports and further evidence are to be submitted\n>Tr\nistablishing proper Eeg\ntin is necessary for the purpose of 70 ARGUMENTS ON PRELIMINARY MOTIONS.\nIt will be noticed further, that the inquiries of the Commissioners\nare confined by Articles VII and IX to the question of Eegulations,\nand have no reference to the points raised by Article VI. It is clear\ntherefore that by the Treaty it was intended that the Eeport or Eeports\nof the Commissioners should be produced, not as part of the Case upon\nthe questions stated in Article VI, but at a later stage and then only\nin the contingency above referred to.\nThen \" with regard to question 5\",\u2014that is the property dr protection point.\u2014\" of Article VI the Government of Her Britannic Majesty,\nbelieving that the alleged 'right of property or property interest'\ndepends upon questions of law, and not upon the habits of seals and\nthe incidents of seal life, have stated propositions of law which in\ntheir opinion demonstrate that the claim of such right is not only\nunprecedented, but untenable. These propositions will be found at\npages 135 to 140,153 to 157, and propositions 15,16 and 17 on page 160\nof 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\nhave introduced in to the British Case matter which in the opinion of\nHer Majesty's Government can only be legitimately used when the\nquestion of concurrent Eegulations is under consideration.\" He then\nenlarges upon those views and proceeds\u2014and this is the point to which\nI 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\ndifferent view; they have taken the position that any facts relevant to\nthe consideration of concurrent Eegulations should have been included\nin the Case on behalf of Her Britannic Majesty presented under\nArticle III, and that the absence of any statement of such facts in\nthat Case has placed the United States at a disadvantage. The Government of Her Britannic Majesty while dissenting from this view are\ndesirous in every way to facilitate the progress of the Arbitration and\nare therefore willing to furnish at once to the Government of the United\nStates and to the Arbitrators the separate Eeport of the British Commissioners with its Appendices.\nThe Government of the United States are at liberty, so far as they\nthink fit, to treat these documents as part of the Case of the Government of Her Britannic Majesty.\nHe then deals, in dignified and I think most courteous language,\nwith the suggestion to which I have already referred, the injurious\nsuggestion, and he expresses regret that it should have been made.\nHe meets it by shortly stating that the Eeport and Appendices so far\nfrom being made to meet the Eeport furnished with the Case of the\nUnited States in the words in which they are now (that is October,\n1892), presented to the United States, were printed on the 21st of June,\nthat is to say, three months before we saw or could have seen their\nCommissioners' Eeport, and \" laid before the Queen in pursuance of\nHer Majesty's Commission\".\nThen comes Mr. Foster's answer; and I think my learned friend did\nnot quite realise what was the effect of Mr Foster's answer. We\nregard it as practically an assent to the position taken up by Lord\nEosebery, an assent in this sense, that they were willing to take and\ndid take the Eeport of the British Commissioners as practically all\nthat we were going to offer on the incidents of seal life if and so far as\nthey had any relation to property. We do not recede from that. We\nmaintain the position still; that, so far as the determination of the ARGUMENTS ON PRELIMINARY. MOTIONS. 71\nquestion of property interest in individual seals, in so-called herds of\nseals, or an industry carried on by the killing of seals goes, it stands\nfor judgment upon facts that are practically undisputed. The question\nis, the principles of law that are applicable to those facts. In acknowledging this, Mr Foster says \"If, as I believe and assume, this Eeport\ncontains substantially all the matter which Her Majesty's Government\nwill rely upon to support its contentions\" not as to regulation \u2022\" in\nrespect to the nature and habits of fur seals and the modes of capturing them; I entertain a confident hope that all further difficulty\nupon the questions discussed in this note may be avoided.\" I answer\nto that, that Mr Foster may assume we do not seek to disturb his\nassumption, that in the document then communicated as far as we\nbelieve any of the facts in it are material upon the question of property\nprotection,\u2014we have no desire to add to that store of information,\nwhether it is ample or whether it is deficient: but, on the question of\nregulations, we have never receded from the position, and do not recede\nfrom the position, we did take up in the original Case and are entitled\nto take up, and which is based on our construction, which we submit\nis incontestably the right construction, that that Article VII does, in\nthe matter of regulations, provide for the possibility and admissibility\nof further evidence tendered by either Government.\nHe then concludes: \"I deem it necessary, however, to say that the\nGovernment of the United States will, should occasion arise, firmly\ninsist upon its interpretation of the Treaty, and that it reserves its\nright to protest against and oppose the submission to a reception by\nthe Arbitrators of any matter which may be inserted in the British\nCounter Case which may not be justified as relevant by way of reply\nto the Case of the United States.\" Our position is this, as far as our\noriginal Case was concerned. We do not seek to supplement it by any\nincidents relating to seal life which have any bearing on questions of\nproperty except in so far as the new matter introduced in the Counter\nCase is there introduced in the terms of Mr. Foster's qualification as\nan answer to the allegations and statements and evidence put forward\nin the Case of the United States; but as to regulations I do not depart\nfrom the position I had previously assumed.\nNow we get to the next stage of this matter which I wish to follow\nout so that there may be no dispute. The moment came for the delivery\nof the Counter Case. What do we do? In the Counter Case they follow the same position consistently throughout. On page 3 of the\nCounter Case there is this passage: \"The subject of the regulations\n(if any) which are necessary and the waters over which the regulations\nshould extend referred to in Article VII of the Treaty is considered in\nPaTt II. For reasons more explicitly stated in correspondence which\nwill be found in the Appendix, the consideration of this point\"\u2014that\nis regulations\u2014\"have been treated in this Counter Case\"^-why?^-\n\" but only in deference to the wish expressed by the United States,\nthat arguments upon all the questions with which the Arbitrators may\nhave to deal should be placed before the Tribunal by means of the Case\nand Counter Case. The Government of Her Britannic Majesty have\nadduced these arguments under protest and without prejudice to their\ncontention, that the Arbitrators will not enter upon or consider the\nquestion of the proposed Eegulations until they have adjudged upon\nthe five questions enumerated in Article VI, upon which they are by\nthe terms of the Treaty required to give a distinct decision, upon the\ntermination of which alone depends the question whether they shall\nenter upon the subject of regulations. Her Majesty's Government 72 ARGUMENTS ON PRELIMINARY MOTIONS.\nreserve also their right to adduce further evidence on this subject,\nshould the nature of the argument contained in the Counter Case on\nbehalf of the United States render such a course necessary or expedient.\" They claimed that then, and I as representing the Government\nnow claim it as within the right provided for by the Article VII to aid\nthe Tribunal, together with the Eeport of the Commission\u2014to aid them\nwith such other evidence as either Government\" may upon the question\nof the Eegulations \"submit\".\nAgain at page 166 D of the British Counter Case the question is\nreferred to and I think that that answers the question addressed to\nus by one of your body as to when this position was taken up. I have\nshown the position under the Original Case. I have shown the position\nin the correspondence with Mr. Foster, and now the position in the\nCounter Case: \"Upon any discussion before the Tribunal upon the\nsubject of Eegulations, Her Majesty's Government will refer if necessary to the supplementary Eeport of the British Commissioners which\nis now in course of preparation and will it is believed be presented to\nHer Majesty's Government by the 31st of January 1893 \" and it was so\npresented and bears that date. The succeeding Chapters have been\nprepared in order that the Arbitrators may be put in possession of the\nconsideration of the other facts material to the consideration of the\nquestion of Eegulations and of the reply on behalf of Her Majesty's\nGovernment to the argument and allegations of fact contained in the\ncase of the United States with reference to pelagic sealing and the\nmanagement of the Islands in the past.\nNow there is but one further stage of this controversy or discussion\nand it is the correspondence which my learned friend in solemn tones\nreferred to this morning. That is the note addressed by the late Mr.\nBlaine when he had ceased to be Secretary of State and when Mr.\nFoster had succeeded to that position.\nI refer with some reluctance to these questions of dispute between\ntwo ministers, to each of whom I desire to attribute equally good faith.\nI think it is unfortunate that these discussions should arise. I think,\nmoreover, that it is unnecessary that they should arise. As I have\nsaid before, if you have ambiguity in a Treaty or any other document\nyou 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\nthe common ambiguity relating to subject matter and so forth, but in .\nthis case the parties have definitely, in English which is clear and\nintelligible to those used to construe English, expressed the purposes to\nwhich both Governments are committed; and I have therefore dealt,\nas the main point and purpose of my argument, with the construction\nof the Treaty itself as that which ought to guide the Tribunal. But\nas my learned friend has felt himself justified in referring to this I am\nbound 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\nin saying that. It is addressed to Mr. Foster, and dated September\n9th, 1892, and is at page 8 of the appendix to the British Counter Case.\nI do not think it appears in the United States Case at all.\nMr. Phelps.\u2014Mr. Blaine's does.\nSir Charles Eussell.\u2014Yes, but not the correspondence as a whole.\nMr. Blaine writes \"After an arbitration had been resolved upon between\nthe United States and British Governments, a special correspondence\nbetween the Department of State and Lord Salisbury ensued, extending from early in July to the middle of November, 1891. The various\nsubjects which were to be discussed, and the points which were to be ARGUMENTS ON PRELIMINARY MOTIONS. 73\ndecided, by the Arbitrators in the affair of the Behring sea were agreed\nupon in this correspondence. A month later Sir Julian Pauncefote the\nBritish Minister and myself arranged the correspondence, and reduced\nthe propositions and counter propositions to a Memorandum which was\nsigned by us on the 18th December. Subsequently, the questions which\nhad arisen between the two Governments concerning the jurisdictional\nrights \", and so on \" were expressed in the form of a Treaty concluded\nat Washington on the 29th February 1892;\"\u2014I do not think it is necessary to read every word of this, because it is not material to the point;\nbut this is the important position.\n\" In all these steps, including the correspondence with Lord Salisbury,\nthe Memorandum concluded between Sir Julian and myself, and the\nTreaty that was ultimately proclaimed on the 9th May, 1892, and which\nwas negotiated by Sir Julian and myself not one word was said or intimated respecting the question now raised by the British Government\nas to\"\u2014I want to call your attention to this extraordinary language\u2014\n\"as to a secondary submission of evidence after the first five points set\nforth in Article VI had been decided by the Arbitrators. It was never\nintimated that any other mode of proceeding should be than that which\nis expressed in Articles III, IV\u2014and V of the Treaty. I shall be surprised if Sir Julian Pauncefote shall differ in the slightest degree from\nthis recital of facts\".\nI will read what, Sir Julian Pauncefote said in a moment, but there\nlurks in this (though not so obviously) as in the argument of Mr. Phelps\nthe suggestion that we are here contending that there shall be two separate awards. First two separate hearings and then two separate awards.\nI do not say it would be outside the authority of the tribunal if they\nthought right to deal with it in separate awards. I do not express an\nopinion, nor is it necessary that I should one way or the other. But\nwhat is necessary, is that there should be an expression of the determination of the five questions submitted in Article VI. The intimation,\nit is quite enough, of the distinct decision of the Arbitrators on the\npoint before they can proceed to the next point in the question of regulations ; and as regards the question of regulations substantially on\nboth sides the matter is entirely, before the Tribunal. My learned\nfriends have said they have not read this Supplementary Eeport. I\nthink they would have been wiser if they had, we begged them to read\nit without prejudice to their objection, but they have not apparently,\nand the result is that Mr. Phelps gives it an inaccurate description. He\nsays .it embraces a number of new depositions. It does nothing of the\nkind. It is a further argument on further consideration of the view\nthat the British Commissioners took upon the question of regulations,\nnothing more.\nThen, Sir, I have to read this answer of Mr. Blaine on this point.\nThe President.\u2014Perhaps that would keep till to-morrow.\nSir Charles Eussell.\u2014If you please, I should much prefer it.\nThe President.\u2014Then, before we adjourn, I call the attention of\nthe'Agents of both Governments to the unsatisfactory character, I am\nsorry to say, of the shorthand report which has been given us. It has\nbeeu a source of great inconvenience.\nSir Charles Eussell.\u2014May I state what has been arranged, and\nI think it will be found to work well. We, on the whole, thought that,\nas the compositors who have set up the type for that print were not\naccustomed to the English language, or certainly not much accustomed\nto read it in manuscript, it was a very creditable production on the part\nof the compositors of this great capital. There are, undoubtedly, a 74 ARGUMENTS ON PRELIMINARY MOTIONS.\nnumber of inaccuracies, but it has been arranged, with the assistance\nof your secretaries and the secretaries of the members of the Tribunal,\nthat there shall be a corrected print at the end of each week, that is to\nsay, that the prints for the week shall all be corrected, and there shall\nbe a reprint of the corrected copy.\nThe President.\u2014Then these are to be considered as proofs?\nSir Charles Eussell.\u2014These are to be considered as proofs for\ntemporary use.\nThe President.\u2014That is a very good arrangement.\nAdjourned till to-morrow at 11.30. FIFTH DAY, APRIL 6th, 1893,.\nSir Charles Eussell.\u2014Sir, when the Tribunal adjourned yesterday evening I was calling attention to the letter of Mr. Blaine of the\n8th November 1892 addressed to his successor in office as Secretary of\nState, namely, Mr. Foster; and Mr. Blaine says that not one word was\nsaid or intimated respecting the questions now raised by the British Government as to a secondary submission of evidence. The first question\nthat one asks one's self in relation to that statement is why anything\nshould have been said. The parties have entered into an Agreement\nor Treaty which speaks for itself, which was to be judged as to its effect\nby the language which was used in it. But it is important to observe\nthat Mr. Blaine in that letter abstains, as you would expect an honourable man to abstain, from suggesting that anything had taken place to\nin any way convey to his mind that the British Government took any\ndifferent view at any time of the proper construction of the Treaty\nthan that which they had consistently observed in their original Case,\nin the diplomatic correspondence, and in the mode in which they had\npresented their case to this Tribunal, but I feel grateful to my learned\nfriend for calling attention to this correspondence, because unless I\nmisconceive its effect, so far from impairing, it materially strengthens\nthe position that I am now taking up. Because in this letter there\nwere enclosed two documents, and I would respectfully, if 1 may, ask\nall the Members of the Tribunal to take before them the Appendix to\nthe British Counter Case, Volume I, for they will not follow, as I should\ndesire them to, the point I am now insisting upon unless they have that\ndocument before them. This is not printed in the United States Case.\nI hope the Tribunal will excuse my appealing to them and making\nsome insistance upon this point, but it is really in aid of the Tribunal.\nI refer to the Appendix to the Counter Case of Her Majesty's Govtern-\nmentj Volume I, page 9. On that page are set out the two documents\nwhich are thus headed. \"Memorandum of Agreement referred to in\nMr. Blaine's letter of November the 8th, 1892\". And it will be seen\nby the Tribunal that that consists of two separate documents, both\ndated, though separately signed, the 18th of December, 1891. Let me\nremind the Tribunal before I read it of the point which is the great\npoint made by my learned friend Mr. Phelps in his argument on the\nconstruction of Articles VII and IX.\u2014That the contingency referred\nto in Article IX is the contingency of any Arbitration taking place at\nall. We, on the other hand, say the contingency referred to in Article\nIX is the contingency of the questions in Article VI being decided in\na particular fashion; in other words, being decided so as to render\nnecessary the concurrence of Great Britain to any Eegulations. Now,\nbearing that point in mind, the contention, on my learned friend's\nside,\u2014what is the contingency referred to,\u2014I say that these documents\ndemonstrate that the contingency was the contingency of the decision\nof those questions in a particular manner.\n75 I\n76 arguments on preliminary motions.\nNow, what is the first of them? \"The following is the text of Articles for insertion in the Behring Sea Arbitration Agreement as settled\nin the diplomatic correspondence between the Government of the\nUnited States and the Government of Great Britain\". Then follow\nQuestions 1, 2, 3, 4 and 5, as they appear in Article VI of the actual\nTreaty which constitutes this Tribunal. Then we come to the 6th\nclause of this Memorandum signed by Mr. Blaine, and Sir Julian\nPauncefote; and here it is.\u2014\"If the determination of the foregoing\nquestions as to the exclusive jurisdiction of the United States shall\nleave the subject in such position that the concurrence of Great Britain\nis necessary to the establishment of Eegulations\".\u2014I omit the words\nwhich for this point are immaterial and which immediately follow, and\nit goes on.\u2014\"The Arbitrators shall then determine\"\u2014need I dwell\nupon those words?\u2014shall in that event determine; shall thereupon\ndetermine,\u2014\"what concurrent regulations outside the jurisdictional\nlimits of the respective Governments are necessary and over what\nwaters such regulations should extend; and, to aid them in that determination, the Eeport of a Joint Commission, to be appointed by the\nrespective Governments, shall be laid before them, with such other\nevidence as either Government may submit.\" The rest of this is immaterial to the point which I am now discussing. Eecollect my learned\nfriend's contention is that this ambiguity, would not have arisen, if it\nhad not been that two distinct agreements were subsequently conjoined\nand made into one, and, as my learned friend implied, perhaps not\nincorrectly, clumsily put together. But I have demonstrated from one\nof these documents alone, and without reference to the other at all,\nthat the contingency which was in that one document contemplated,\nwas the event of the question of right (I use that expression for brevity)\nbeing decided in one fashion; and then, in that event and in that event\nalone, the determination, of the question of regulations came to the\nfront.\nI of course may be taking a sanguine and a partisan view of this\ncase, but I do not desire to do so, and I confess my difficulty in understanding what answer can be made to that contention.\nNow let us see what the next document is. You will observe that\nthe document which I have read and especially clause 6 of that document which I have read, corresponds with Article VII of the actual\nTreaty. Where do we find Article IX or the germs if I may so call\nthem of Article IX in the Treaty.\nWe find that in the next document; the following is the text of the\nBehring Sea Joint Commission agreement as settled in the diplomatic\ncorrespondence between the Government of the United States and the\nGovernment of Great Britain:\u2014\" Each Government shall appoint two\nCommissioners to investigate, conjointly with the Commissioners of the\nother Government, all the facts having relation to seal life in Behring\nSea and the measures necessary for its proper protection and preseva-\ntion. The four Commissioners shall so far as they might be able to\nagree, make a joint report to each of the two Governments and they\nshall also report either jointly or severally to each Government on any\npoints upou which they may be able to agree. \"These reports\"\u2014that\nis to say, whether \"joint\" or \"joint and several\" \"shall not be made\npublic until they shall be submitted to the Arbitrators, or it shall\nappear that the contingency of their being used by the Arbitrators will\nnot arise.\"\nTaking the two together is there any doubt what they mean. It\nwill be observed that Article IX is not textually in strict accordance ELIMINARY M0TI0N8. 77\nwith the second of those docume\nits, but it furnishes the substance,\nwhich affects the point which I am\nstop here, and not refer to the a\nsubmitting. Therefore if I were to\nnswer which Sir Julian Pauncefote\nletter 'of Mr. Blaine, with enclos\nlearned friend's point, it is an aid t\ning. But what is Sir Julian Pann\nfit to print the letter of Mr Blaine\nares accompanying it, serving my\no the argument which I am present-\ncefote's answer; and here I have to\nthan observe in passing that he ha\nI think ought to have been prin\nted, namely Sir Julian Pauncefote's\nMr. Foster.\u2014May I say it won\nwritten and received in time to be\nSir Charles Eussell.\u2014I am v\nMr. Foster.\u2014It bears date tw<\nreplies.\nSir Charles Eussell.\u2014That\nI am very glad to have that explai\nId have been printed if it had been\n> months after the letter to which it\nisly Mr. Blaine appeals to Sir Julian\nthTanswe? to%ha?appell6 sh?uld\u00b0\nappear. ' However, the answer that\nNow what does Sir Julian Paun<\nby showing why there was not an\nthat, because he says \"Since my\narlier answer for the reason that he\nfrom Mr. Foster to Mr. Herbert of\nentially appealed to by Mr. Foster\nthe contention of the United Stati\nmentioned in Article VII\"\u2014that .\nught to be Article IX by the way\u2014\n'^^^0S.mm^^SbM>\nthe inability of the Joint Commission\n\u2022 \u2022 1 a in at a loss to understand th\nis reference to me, as throughout the\nISallf^s\nplainly expressed in Articles VII a\nto those articles Mr. Foster states\nthat of an inability of the member\nSS\u00a5\u00a3Sti^fHo^ei\nnti^X^M^Fo^adds^tt\nis believed that Sir Julian Paunce\nMajesty's Government, will not di\n\u25a0sent from this statement.\" Here is\n) says:\u2014\" I desire to record my entire 78 ARGUMENTS ON PRELIMINARY MOTIONS.\nIt follows as a necessary consequence that if the Arbitrators should\ndetermine that the concurrence of Great Britain is not necessary to the\nestablishment of regulations for the protection of seal life, the seal fishery would thenceforth be exclusively regulated by the municipal law of\nthe United States, and no \"concurrent\" regulations would be necessary. Therefore Article VII provides that if it shall be decided that\nthe concurrence of Great Britain in any such regulations is-necessary,\nthe Arbitrators shall then determine what those regulations shall be.\nArticle IX provides that the joint and several Eeports of the Commissioners may be submitted to the Arbitrators \"should the contingency\ntherefor arise\"; and further that the Commissioners shall make a Joint\nEeport \"so far as they may be able to agree\", and that their Eeports,\njoint and several shall not be made public until they shall be submitted\nto the Arbitrators, \"or it shall appear that the contingency of their\nbeing used by the Arbitrators cannot arise\". And then in order that\nI may spare the Tribunal the full reading of this document, because he\nproceeds to justify that view, I would ask the Tribunal to allow me to\ngo down to about the middle of the page beginning \"The contingency\".\n\"The contingency of such evidence being used could not arise till after\nthe decision of the Arbitrators on the five special questions. It was\nquite unnecessary, therefore, to discuss during the negotiations, and by\nway of anticipation, the mode in which that evidence should be brought\nbefore the Arbitrators. The contingency of that evidence being used\nbefore the Arbitrators might never arise, and, if it did, the mode of its\npresentation would be a matter of procedure for the Tribunal to settle.\nIndeed, any discussion on that point would have been premature, as\nanticipating a decision adverse to the United States on the five special\nquestions\". And then he concludes by further references which I will\nnot trouble the Tribunal with.\nNow I pass from that correspondence and giving equal credit to Mr.\nBlaine for the very negative view that he expresses\u2014the very negative\nview\u2014and claiming equal credit for the bona fides of the dissent which\nSir Julian Pauncefote has expressed, I recur to what I ventured to submit to this Tribunal yesterday, namely that, although it may be right\nto refer, where the question is a question left in doubt upon the construction of the Treaty\u2014in any serious doubt\u2014to negotiations which\nled up to it, and though that is certainly very frequently a matter or a\nmode of construction, or an aid to construction, I should prefer to say\noften and properly resorted to if the question arises on the construction\nof the Treaty of Arbitration as to the question of jurisdiction, as to the\nsubject to be dealt with, as to the limits of the powers, and so forth, yet\nI admit, when you have a Treaty which as I submit on the face of it is\nintelligible and admits of no real serious doubt of construction, the\napplication of any reference to antecedent diplomatic correspondence is\nat least a doubtful proceeding. You must construe the document upon\nintelligible rules with reference to what the document itself has said.\nI pass from that and I have to make a reference to another point even\nmore remote which my learned friend Mr. Phelps, thought proper to\nmake, or thought himself justified in making, still upon the point of\nthe 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\nheld, and it will be in the recollection of the Tribunal that on page 52 -\nof the printed note of the day before yesterday's proceedings, my\nlearned friend Mr. Phelps, referred to Sir Julian Pauncefote's letter to\nMr. Blaine on the 29th April, 1890, which contemplated a scheme of\nEegulations, and a scheme of Eegulations only. My learned friend said ARGUMENTS ON PRELIMINARY MOTIONS. 79\nthat that clearly contemplated that if the Commissioners who were to\nbe appointed to frame that scheme of Eegulations agreed in framing\nthat scheme of Eegulations, that that was to be binding. I perfectly\nagree; but does my learned friend suggest (I did not understand him\nto suggest) that that was the only matter that was in the view of the\nGovernment at that time? Not at all. There was in the view of both\nGovernments at that time strongly, and always insisted upon by the\nGovernment of Great Britain, that the questions of right must be settled,\nthat the question of damages to be paid by the United States if they\nwere wrong.\nSenator Morgan.\u2014Do you mean property right?\nSir Charles Eussell.\u2014I do not say property right merely, but questions of right,\u2014I say, Sir, questions of right. I do not limit it to one\nquestion or another. I say questions of right should be settled, and at\nthat very time as my learned, friend must know because I presume he\nis familiar with the negotiations that had been going on and that were\ncontinued after the Government of Great Britain were insisting upon\ntheir claim for compensation in respect of what they contended was the\nwrong committed upon the ships of\" their subjects by their, as they contended, wrongful seizure in Behring Sea. Throughout it cannot be\ndoubted that this has been the position taken up by the Government of\nthe Queen, a position from which I am not departing now and from\nwhich the Government has never departed. They deny to-day, they have\nalways denied, each and every part of the rights claimed as rights by the\nUnited States exclusive of others. They have always demanded compensation in respect of the seizures which they contend were illegal;\nbutthe questionof right settled, they have always professed, and they profess\ntoday, their readiness to consider any fair question of Regulations, always\nbearing in mind that that question of Regulations is to be approached upon\nthe assumption that outside its territory, that outside the additional limitations of water, boundary conceded by International Law, the United States\nhave different rights from the rights of the rest of the World frequenting\nthose waters.\nSenator Morgan.\u2014Approached by whom?\u2014That that question must\nbe approached, in the way you indicated, by whom? By the Tribunal\nor by the United States?\nSir Charles Eussell.\u2014What I have been stating, if you have done\nme the honour to follow me, Sir, is what the position of Her Majesty's\nGovernment on this question was.\nSenator Morgan.\u2014I understand that.\nSir Charles Eussell.\u2014That that question of Eegulations is to be\napproached on the basis of no rights on the part of the United States\nexcept such as belong to her by reason of her territory rights, as we\ncontend, well and accurately defined by International Law; and her\nposition, therefore, has always been that it is impossible to approach\nthis 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\nof the United States. Once that question is got out of the way, then\nthe ground is clear for the establishment of Eegulations just, expedient,\nconvenient in the interest of all who are concerned in the question. I\nwas stating the position which I, representing the Government of the\nQueen, take up; which position is consistent with the attitude that the\nGovernment of the Queen has constantly maintained.\nSenator Morgan.\u2014J perfectly comprehended that point; but I did not\nunderstand if Counsel insisted that the question was to be approached by\nthe United States or by the Tribunal in the manner indicated. 80 ARGUMENTS ON PRELIMINARY MOTIONS.\nSir Charles Eussell.\u2014I contend respectfully, and I should not\nhave used language perhaps of so forcible a character to the Tribunal\nitself; but, of course, my argument involves the contention that that\nis the only mode in which the Tribunal can approach the question within\nits powers under this Treaty. The United States are, of course, equally\nbound if my construction of the Treaty is a sound one.\nNow it must be obvious. I do not think my learned friends have\nmade any attempt to conceal it;\u2014that the object of this motion is not\nconfined,\u2014the object, the motive of this motion\u2014to the question\nwhether this particular Supplementary Eeport is or is not to be admitted.\u2014My learned friend Mr. Phelps's argument upon the question as I\nneed 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\ndirectly; indirectly a question of very grave importance, as he quite\ncorrectly styled it and which must some time or other be determined\nby this Tribunal.\nFor my own part I thought the motion advanced by my learned friend\nwas premature.\nI think so still. I think the time for his motion would have been\nwhen we are approaching the question of Eegulations and that he\nmight have reserved until that time the point whether this was a matter which the Tribunal should or should not have dealt with and we\nwould have been quite willing to have withdrawn this Supplementary\nEeport altogether for the present from the Tribunal, and to have reserved\nto a more legitimate occasion the question whether it was or was not\nproperly to be received. But now as the Tribunal has expended so\nmuch time in the patient consideration of its reception probably it had\nbetter be discussed to the end. I say that my learned friend gave this\nvery marked importance to it because he yesterday said this: \"Two\ntheories have been propounded by the respective parties\" (That is at\nthe bottom of page 55 of the Eeport) \" upon the construction of this\nTreaty, in respect to the method of procedure. As I have remarked, I\nbelieve this has been the subject of some diplomatic proceedings to\nwhich I shall ask the attention of the Tribunal, and the views of the\nother side have been communicated to us in a letter which accompanied,\nI believe, the notice that this Eeport would be offered so that we are\nadvised, and have been before advised, of the position that the Counsel\nof Her Majesty's Government take upon the subject. Their theory is\nthis: That there are to be, in effect, two hearings,\" two Arbitrations,\ntwo awards (I am stating what Mr. Phelps attributes to us) \" first upon\nthe five questions that are first propounded in the Treaty, next in the\nevent that those questions should be decided in favour of the British\nGovernment, a further hearing upon the subject of Eegulations, and\nthat on that hearing fresh evidence, other evidence not theretofore in\nthe case is to be admitted. That is their view. We deny altogether\nthat the Treaty contemplates any such thing as two hearings, or that\nthe case discloses any propriety for such a method of procedure, I do\nnot say necessity but any propriety\". And then he proceeds to argue,\nand this is really the real bone of contention between us,\u2014that my\nlearned friend contended that all these questions,\u2014\" Eight\" and \" Eegulations \"\u2014should be dealt with together, mixed up I know not how,\nthat you shall determine \" Eight\" in view of arguments about \"Eegulations\", and \"Eegulations\" in view of arguments about \"Eight\", and\nto these subjects which are in themselves m their very nature distinct,\nmarked by a clear dividing line, and a dividing line which as I ven- ARGUMENTS ON PRELIMINARY MOTIONS.. 81\ntured yesterday to point out marks also a division in the character of\nthe functions that this Tribunal has to perform, they.are according to\nthe contention of my learned friend to be mixed together and not as we\ncontend to be kept distinct.\nWell now it is said that we claim two hearings, two awards, two\nArbitrations, and all the rest of it. Well I will not say that this is\nnonsense, because that would not be respectful, but my friend cannot\nsuppose that we mean anything of the kind. We mean that this Arbitration, that this Tribunal, having heard the discussion of the questions\nof right and the evidence, from whatever source it is to be derived\napplicable to those questions of right, shall proceed to state their conclusion,\u2014if that be their conclusion as to all those questions,\u2014that\ntheir determination of those five questions is such as in their opinion\nto require the concurrence of Great Britain in Eegulations within the\nmeaning of Article VII, and, thereupon, my friends are to proceed to\njustify their claim for Eegulations by such evidence as is relevant to\nthat 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\ninvolve two awards; it does not involve two Arbitrations; it involves\nthe simple act of keeping distinct and separate things which are in their\nnature distinct and separate. It involves no additional expenditure of\ntime, and, although I said yesterday, and I wish to retract nothing\nthat I said yesterday, that 1 thought this Tribunal would be reluctant\nto close the door against any important fact that might even recently\nhave transpired which had an important bearing upon what ought to\nbe the judgment of the Tribunal in the exercise of its discretion on the\nquestion of Eegulations, I did not thereby mean to hold out to this\nTribunal, or to suggest to this Tribunal, that we had any or the least\nidea of offering such volume of evidence as my words might seem to\nhave suggested. Our case substantially is, as to Eegulations and as to\neverything else, before this Court, with the exception of this Supplementary Eeport. We think it is irregularly before this Tribunal; and\nwe have only yielded to the irregularity in order that there might be\nno ground for suggesting that there was a grievance on the part of the\nUnited States; and it was in deference to the suggestion of the United\nStates itself, and contrary to the view which the advisers of the Government took that Lord Eosebery yielded to the objection of the United\nStates, and furnished to the representatives of the United States, to be\ntreated as part of our Case, the British Commissioners' Eeport. This\nEeport which we propose to put in evidence is supplementary to that.\nAnd two questions, of course, arise in relation to if; and to those two\nquestions I should like to address one word, and one word only. I mean\nthe point thrown out by the President yesterday as to the word \" evidence \" appearing in Article VII.\nBut before I do that may I be allowed for one moment to recur again\nto a point which I made yesterday. My learned friend Mr. Phelps\ncomplained and made it a matter of grievance; and of course it is a\ngreat thing to get hold of a grievance if you can. A grievance is almost\nas good as a sound argument at times before some tribunals. My\nlearned friend wants to get hold of a grievance, and he says: We have\nreason to complain also that even upon the question of property and\nproperty rights, and protection in relation to property rights dealt with\nunder point 5 of article VI-why even on that point, says my learned\nfriend, even on that point the Government of the Queen really do not.\ntell us what their case is at all. Now I think it is important that it\nshould be shown that there is really no foundation for this complaint.\nB S, PT XI 6 82 ARGUMENTS ON PRELIMINARY MOTIONS.\nI yesterday called attention to page 11 of the British Case (the bottom\nof page 10 and the top of page 11), where the subject is briefly adverted\nto;, but if the Tribunal will be good enough to turn to page 135, chapter\nVIII, the Tribunal wifffm* that we have discussed this question of\nproperty, so far as it was possible for us to do it in the then condition,\nof things. For what was our position? Our position was and is, this:\nthe claim of property is unprecedented. This claim of property is novel.\nIt finds no warrant, as we contend, in law. You do not contend that\nseals are animals ferw naturw. You do not contend that. You admit\nthat they are not\u2014at least I think so. I know you do not contend that\nthey are: but at least you do not deny that they are animals ferw\nnaturw. Whether that will be denied or not, I really do not know, but\nwe did not conceive that it could be denied, and thereupon I want to\nask the Tribunal whether we were called upon, whether we could with\npropriety be expected to do more than to point out as we have done in\nchapter VIII the general principles which apply to property, and how\nproperty could be acquired in animals of that class, and to point out\nthat according to our conception of those principles they had no relevance to the claim of the United States, and did not support their claim\nof property in the fur seals. Was it to be expected that we were with\nthe necessarily imperfect information at our command at that time\u2014to\na large extent imperfect\u2014to know what were the conditions of seal life,\nthe incidents of seal life as to the going and the coming, the length of\nresidence on the islands, their migratory return to the ocean\u2014were we\nto set up hypothetically the incidents relating to that seal life which\nwe might expect might be relied upon by the United States, in order\nto meet them?\nI say that would have been illogical and more. I think it would have\nbeen entirely improper. We state our general principles. We say you\ndo not come within those principles as far as we know; and when they\ndo advance the grounds, as they do at the later stage, when we see their\nCase, and when we know the grounds upon which they put them, then\nwe 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\nend of the argument with which I have had at this great length to\ntrouble you.\nBut 1 desire to say something upon the point of what is the meaning\nof evidence in Article VII: \" shall be laid before them with such other\nevidence as either Government may submit\". It will be observed by\nthe Tribunal that two questions arise in relation to this Supplementary\nEeport. One only can be dealt with by this motion, namely, whether\nany evidence at all not in the Case and Counter Case can be submitted.\nThe second point whether, if any evidence can be admitted, as we suggest it can and ought, whether this particular Supplementary Eeport is\nevidence, is, of course another question, and that you cannot judge (it\nis obvious) until you see what it is; and therefore the sole question that\ncan be dealt with here is, whether any evidence touching regulations (I\nhope the Tribunal understands that) touching regulations: conversant\nwith nothing else but regulations: directed and intended to be used for\nno purpose except regulations: whether any evidence of that kind\ncan 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\nassumed that the Supplementary Eeport is evidence within the meaning\nof Article VII.\nThe question, therefore, is narrowed, so far as this motion is concerned,\nto the question whether any evidence can be admitted which relates to\nregulations, and which is not to be found in the Case or Counter Case. ARGUMENTS ON PRELIMINARY MOTIONS. 83\nBut although that is so, I do wish to say a word upon what \"evidence\"\ndoes mean in this Treaty. It will save discussion hereafter, and I am\nhappy to think that there are some parts of this discussion in which I\nthink I can reckon upon the support of my learned friends. I need not\npoint out that there are different meanings which may be given to the\nword \"evidence\". There is no necessity for referring to any but two\nfor the purposes of this discussion, namely, evidence receivable according to legal rule and determined in a judicial proceeding\u2014that is one\nkind of evidence; and the other kind is any material which will throw\nlight 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\nstandard of technical evidence in a judicial proceeding.\nThe distinction is made more manifest when I remind the Tribunal\nof this, and there is no member of it that is not conscious of it, that\nwhat is legal evidence varies in different countries; nay, it varies even\nin parts of the Queen's Dominions; as for instance, with barely one\nexception, viz; questions relating to questions of pedigree\u2014in the English Courts of Justice, hearsay evidence, as it is called, is not admissible.\nI, as a witness testifying in an English Court of Justice, would not be\nable, in proof of a given fact, to say that A. B. had told me that the\nfact was so. But that class of evidence is admissible upon other than\nquestions of pedigree, even according to the Scotch tribunals, and the\nsystem of judicature which they administer. The Scotch system is, as\nno doubt many of you, if not all, know, largely founded upon the\nEoman 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\nmuch wider as to the reception of evidence than those which prevail\neither in England or in the United States. As far as the United States\nis concerned we stand upon common ground. Their system of judicature is founded upon our system of judicature; their common law is our\ncommon law; and I could indeed give no better illustration of the community of law, even upon matters of evidence, and could say nothing\nmore creditable and praiseworthy of the judicature of the United\nStates, and of the writings of its lawyers than to point out the fact that\nin England one of our principal text books upon law of evidence,\nknown as \"Taylor on Evidence\", a book that my learned friends are,\nno doubt, familiar with, is absolutely founded upon\u2014in great part taken\nfrom\u2014a well known American work, by a well known author in the\nUnited States. I mean Mr. Greenleaf upon evidence.\nWe could not therefore have any better illustration that on this question of the technical meaning of evidence both countries are in accord,\nnamely that an English text-writer on the question of evidence bases\nhis work upon that of a United States author treating on the same\nsubject. Then what does \" evidence \" mean in the language of a Treaty\nto which two nations are parties who profess substantially the same\nsystem of law. Well I think I may cut this part of my argument short,\nand I am sure that it will be with a sense of relief that you, Sir, will\nhear that. You can have no better means of knowing in what sense\nthe word \" evidence \" was used in this Treaty, than by showing the way\nin which each of the parties have acted upon it. That being so, I turn\nto their original Case with its voluminous Appendices, and I make this\nbroad statement which I do not think will be denied, that with the\nexception of some documents of a historical character, and public documents which would derive some sanction for their acceptance from their\npublic character, there is in no part of the Case, or the Appendices of 84\nARGUMENTS ON PRELIMINARY MOTIONS.\nthe United States, any thing that would be strictly receivable in evidence if tendered'in a court of law presided over by a judge clothed\nwith no more than the ordinary authority of a judge of one of the High\ncourts. They are Eeports: the result of inquiries, in large part of correspondence with persons who are answering certain questions upon\nthe incidents of seal life; what they think about this, and what they\nthink about that, conversations with third parties in which third parties say what some fourth person has told them. Many comments, no\ndoubt, may be addressed to the value of portions of that evidence, but\nyou will not hear from me, Sir, you will not hear from any one on my\nside, 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\nyou to deal with it as both sides and all sides have dealt with it, as being\na matter not bound to be brought within the technical rules of evidence\nas considered in ordinary judicial proceedings and established courts\nof judicature, but as meaning something much wider and something\nmuch broader. Indeed, I might point out this as an illustration of what\nI have said\u2014the last illustration which I shall make. A number of\nso-called depositions, some of them taken in Canada, and some of them\ntaken elsewhere, are included in the Case, and Counter Case or the\nAppendices to the Case and Counter Case of the United States. Now\nI need not say that even if the deposition, or oath which is involved in\nthe notion of a deposition, were even legally taken, that would not\nmake it evidence at all. It is a primary condition for the admission of\nevidence in an ordinary court that a witness who deposes shall be submitted to cross-examination. That is necessarily involved in it. But\nmore than that. There is in Canada, as there is in England,\u2014and, I do\nnot affirm it to be so, but I think, as there is also in the United States\nof America\u2014a statute directed against what is supposed to be the profanity involved in taking what are called extra-judicial oaths\u2014in other\nwords, a statute which renders it improper and which forbids the taking of oaths except injudicial proceedings and within certain accepted\nlimitations; in the case of the United States depositions taken in Canada we find them taken and sworn to, absolutely against the law of that\ncountry.\nWell now, Sir, I really have said I think enough to show you that the\nword \"evidence\" in this connection means not technical evidence\naccording to the rules of courts of judicature, but that this Tribunal\nwill look to all the information that is put before them even if it is only\n. second, or third, hand,\u2014using their own judgment, weighing the evidence, discounting it if need be, and giving it only the proper weight\nwhich they think it really deserves.\nAnd now, Sir, I think I have only one other matter to refer you to,\nand that is the letter of Mr. Tupper iu answer to the communication from\nMr. Foster, the United States Agent, returning the Supplementary\nEeport. You will recollect, Sir, that when the Supplementary Eeport\nwas furnished to the United States Agent, it was also intimated to him\nthat it was intended to forward it to the Tribunal. Mr. Foster then\nwrote,\u2014I am not- making any complaint,\u2014his letter of the 27th of\nMarch, objecting to that being done; and Mr. Tupper, the Agent for Her\nMajesty, replied upon the 27th March, and I want to read to you that\nreply.\u2014\"The undersigned Agent of Her Britannic Majesty appointed\nto attend the Tribunal of Arbitration convened under the provisions of\nthe Treaty concluded at Washington February 29th, 1892, has the\nhonour to ackowledge the receipt,\"\u2014and so on; 1 do not think I need\nread the formal part,\u2014\" and in reply thereto desires to state that it is\n1 ARGUMENTS ON PRELIMINARY MOTIONS. 85\nthe view of Her Majesty's Government that the mode of procedure contemplated by the Treaty has not been accurately followed. While all\nthe material bearing on the whole subject matter in dispute, intended\nto be used by either party was to be submitted to the other party, that\npart of such material which bore only on the question of regulations,\nand 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\nlatter,\"\u2014that is to say, as to right,\u2014\"should alone in the first instance\nhave been submitted to the Arbitrators, the former, namely that part\nrelating to regulations, only when the contingency therefor arose, or in\nother words when the determination of the questions of exclusive right\nhad been arrived at\".\nIt was upon this principle that the original Case of Great Britain was\nframed, and this course would have been followed but for the objections\nraised by the United States as stated in Mr. Foster's letter to Mr. Herbert of September 27th, 1892. In deference to those representations\nand in order to facilitate the progress of the Arbitration, Her Majesty's\nGovernment, while maintaining the justice of their contention, furnished\nto the Government of the United States and to the Arbitrators, the\nSeparate Eeport of the British Commissioners and its Appendices,\nreserving at the same time their rights, as stated in Lord Bosebery's\ndespatch to Mr. Herbert of October 13th, 1892. The Government of the\nUnited States in presenting to the Arbitrators, with their original Case,\nthe separate Eeport of the United States Commissioners had, in the\nopinion 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\nMajesty's Government furnished to the Agent of the United States, and\nto the Arbitrators, the Supplementary Eeport of the British Commissioners which was referred to on page 166 D. of the British Counter\nCase. At the proper time Her Majesty's Government will submit to the\nArbitrators that they are entitled to use this Supplementary Eeport,\nand they are quite willing.\u2014I call special attention to this\u2014\" that\ncopies should remain in the hands of the Eepresentatives of the United\nStates, without prejudice to any objection they may desire to raise.\nThe Government of Her Britannic Majesty believe that the Arbitrators\nwill desire to have at their disposal any trustworthy information which\nmay assist them upon the questions referred to them for decision.\"\nWe were willing that they should without prejudice take this Eeport.\nIf they had taken it and read it perhaps we might not have had this\nmotion at all, but my learned friend preferred to have it returned, as\nMr. Foster says, unread, and then to rely upon the statement derived,\nI know not whence, that it contains fresh depositions. It contains no\ndepositions\u2014no depositions whatever; and I do think that if even now\nmy learned friends had looked at it, they would have probably not felt\nbound to raise the question so far as this document is concerned. But\nI am fully aware, as I have already made apparent, that that is not the\nreal question that is here involved\u2014that is not the motive of this\nmotion\u2014the mere rejection of this Supplementary Eeport. It is the\ndetermination of that question of procedure to which I have adverted\nas giving, in Mr. Phelps's view, and I agree with him, importance to this\nmotion.\nI 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.\nFirst, it is clear that the Eeport or Eeports of the Commissioners are 86 ARGUMENTS ON PRELIMINARY MOTIONS.\nnbt in all events to go before the Arbitrators, because in Article VII\nthey are to be laid before them only in the event of their having to\nconsider Eegulations: and they are to consider Eegulations, and to\nhave power to consider Eegulations, only if the determination of the\nforegoing questions renders it necessary. They are not to have it laid\nbefore them or to be used by them until the contingency in Article IX\noccurs, and the real turning point in this controversy depends upon,\nand my learned friends felt it, what is that contingency mentioned in\nArticle IX? If the contingency is that which we say it is, then I think\nthere can be no doubt that our construction of the Treaty is the correct\none. We say that contingency is not the contingency of any Arbitration at all, because we say the Treaty does not say so. The Treaty\nsays that the contingency is the determination of the first five questions\nin the particular way. We say, in the next place, it cannot be the contingency of any Arbitration at all, because that would involve the\nassumption that if the Commissioners agreed as to the Eeport, that that\nEeport upon the matter of Eegulations was to be binding upon and to\ntake the place of a decision of this Tribunal. But Article VII in clear\nand emphatic terms shows that that is not true because it explicitly says\nthat it is to aid the Tribunal in the determination of the question. If\nI am right in that, what is the position of things? Then we reach a\npoint in the controversy at which alone, and for the first time, the Tribunal are entitled to take into their consideration the question of the\nEeport as bearing upon Eegulations\u2014The first time at which they are\nentitled to take into account anything bearing upon Eegulations. We\nhave had the machinery for the first five questions dealt with in the\nantecedent Articles\u2014questions of right. They are got out of the way.\nWe come to questions no longer questions of right,\u2014questions of\naccommodation; questions of convenience; questions of expediency;\nquestions 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.\nand others in this question,\u2014a question which does not depend upon\nlegal right at all; and when you have got to that point then it is that\nthe Eeport is to be laid before you with such other evidence as either\nGovernment may submit. Again, I warn this Tribunal against its being\nsupposed, when I urge with insistence this point, that I am holding out\nto this Tribunal any prospect of a reopening of this question and of a\nbranching out in to new enquiries and into large fields of evidence. No;\nas 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\nhave anything to say when they see that supplemental Eeport, to answer\nit, to explain it, to contradict it, we do not object to their having that\nright. By all means let them read it; let them judge of it; let them\nsee if it is a matter capable of answer or explanation, and act accordingly; and when my learned friend, in solemn and impressive tones,\nspeaks of the grave injustice of having fresh matter put upon him\nwhich he has no opportunity of answering; allow me. I entreat this\nTribunal, to ask them to understand this and see how little reason there\nis to suggest any special hardship or to suggest any real injustice.\nI have before me their Counter Case. I am making no complaint\nabout it or its contents. I may have to make comments hereafter; but\nI find in the Counter Case at page 207, what? On the 18th of July 1892\ninstructions addressed to a Capt. Hooper of the Eevenue Marine cutter\n\"Corwin\", instructing him to proceed to the Pribilof Islands and to\nmake certain inquiries and to report the result of those inquiries; and\nthe result of his inquiries, accordingly, appears in four reports, the first TS ON PREI\nfth of Augu:\nthe whole of this Counter\nrations that I have given w\nlich we have had no opportu\nEeport, withthis important difference\u2014that the Supplementary Eeport,\nif I am permitted to say so much in description of it (I do not know\nwhether I am) is a supplementary report, not putting forward new\nfacts, but expressing on further information and further consideration,\nthe views of men who have had special opportunities of observing this\nquestion of seal life, so far as it bears upon Eegulations. That is the\ncharacter and purport of the Supplementary Eeport. It is not a new\nreport like Capt. Hooper's, of new facts. It is comment, argument in\nthe light of further inquiry and further investigation.\nNow, Sir, I sit down, gratefully recognizing the patience with which\nthis Tribunal has heard me. And before I sit down I wish to empha-\n, size the point which alone gives grave importance to this question\u2014\nthat we claim from this Tribunal a decision as to which there shall be\nno doubt or hesitation; that the questions of right shall be determined\nbefore the question of\" Eegulations is approached; and we shall use\nevery effort which it is in our power legitimately to use to insure that\nresult.\nSir Eichard Webster.\u2014I cannot add anything to Sir Charles'\nargument..\nThe President.\u2014We thank you for the perfect lucidity with which\nyou have argued your point.\n. I would ask Mr. Phelps and Mr. Carter whether they have anything\nto add in point of observation to the foregoing argument.\nMr. Carter.\u2014Mr. President, before I begin what I have to say in\nreply to the argument which has been addressed to you upon the other\nside, there is perhaps one point upon which I ought to make an observation in order that my argument may be better understood and not\nmi sapprehended.\nThe learned counsel when taking his seat in the course of his argument yesterday, made an observation pertaining to what I may perhaps\ncall the proprieties of forensic controversy in something Eke these\nwords: 88 ARGUMENTS on preliminary motions.\nIf his observations had stopped there I should not have thought it\nworth while to say anything; but he continued, and perhaps this was\nthe purpose for which he introduced the observation:\nI am quite sure that there are many propositions put forward in the argument\nwhich I have had the pleasure of reading, presented by the United States, whioh I\nshould be sorry, and I think my learned friends themselves would be sorry to commit\nthemselves to as approving lawyers.\nOf course I can say nothing as to the rule which learned counsel\nmay prescribe for themselves in addressing a judicial tribunal. The\nintimation is that the opinions we express here and the arguments we\naddress to the Tribunal should not be regarded as our real opinions,\nor as not necessarily so, but as simple suggestions which may be made,\nand which are submitted to the Tribunal without any expression whatever as to whether counsel believe in them or not, for what they may be\nworth. 1 cannot say that I think there would be any very high degree\nof value in a rule of that sort; and I think I should be quite unable\nto comply with it myself. I have a habit myself, whenever I feel\nstrongly upon any question and have decided convictions in respect to\nit, to express myself accordingly. I have no other way of arguing it;\nand I do not object to the Tribunal's believing, when I speak as if I\nbelieved in the opinions expressed by me, that I really do believe them,\nand this, too, notwithstanding any derogatory estimate which an opinion\nof that sort might compel them to form concerning the soundness of\nmy views as a lawyer.\nI say this in reference to our printed argument, so far as I have had\nanything to do with it, and I say it in reference to anything that I have\nexpressed, or shall hereafter express, in oral argument. I might add\nto this that I do not think the learned counsel himself very well follows\nthe 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\nto think he so believed. And I cannot help thinking that he has at\n.times expressed himself with such force and earnestness as to indicate\nthat he really did mean what he said and intended the Tribunal and\nourselves to believe so. It would be very difficult for me to listen to\narguments of counsel except upon a rule of that sort.\nI say this for the purpose of showing, not that counsel are not at\nliberty to submit to judicial Tribunals opinions or arguments as to\nwhich they may have some possible doubt, with a view of allowing the\nTribunal to weigh them; but I say it for the purpose of intimating that\nI have no objection to having the Court suppose that I really entertain\nthe opinions which I appear to entertain and express myself as entertaining.\nSo much for that. Now let me.come to the real subject of this debate.\nTt has taken a very wide range indeed. I do not complain of the extent\nof that range. A great many things have been said in it perhaps not\nrigidly vital to the questions arising upon the particular motion which\nhas been submitted to the Tribunal; but still they have a bearing upon\nit, and they are also things which at some time or other, in the course\nof the discussions which will take place before the Tribunal, would be\nlikely to be said, nay, which would have to be said; and we may say in\nregard to them, or some of them, at least, that they may as well be said\nat the start, and the necessity of repeating them hereafter may thereby\nbe dispensed with, possibly.\nBut what is the nature of the proceeding which is now before the\nTribunal? What are we talking to? What was it that occasioned this\npresent discussion? We can at least ascertain the point where we ARGUMENTS ON PRELIMINARY\nbegan, however wide the range of discussion m\n. and see what that point was, and what the Tri\nThe question arose in t\nThe Tribunal assembled,\ndences of the parties we\ny. We came here on the 23\nrd of March\n^^ssasasss\nons and ev\nI long prio\nomitted a long time before,\nwe .supposed, provided b3\n5 of evidence, or any thing i\nr the Treat\nn the natur\nby which anything in the\nof information, if you please, aside from evidence,\" or of \"a lower\nthan evidence, could be laid before this Tribunal. We never ima\nthat there was to be any further opportunity for the submissi\nevidence on the part of Her Majesty's Government. We the\nindeed, that we had much reason to complain in relation to the\nleges which had already been assumed by Her Majesty's Govern\nin the matter of the introduction of evidence. We thought wi\nmuch reason to complain; but in a certain sense that had passed,\ndid not suppose there would be any further occasion for renewin\ncomplaints, or feeling that we were subjected to any disadvantag\nOn the 23rd of March we took another step. We began the argt\nof the questions which are submitted to this Tribunal, and the\nment of all of them\u2014the question of jurisdiction in Behring se\nn of the pro\nndustry ests\nperty\ninterest of the Unil\n3d upon the Pribil\n,ed States in\nof Islands, tl\nthe seals and\nconcun\nent regulati\nons\u2014i\nill the questions re\nquired by tin\n) Treaty to be\nsubmitt\n,ed to the T\n-ibuna\n1, and as to which\nevidence ha\n1 been taken.\nWe beg\nan the argui\nnenti\na reference to them\nbysubmittii\nig our printed\nSI\nr it, that ce\ndance\nhould\nwith the provision\nhave supposed, if\n8 of the Tret\nwe had an\ns ripe for a\nity. Wesup-\n\u2022gument, and\nafter ai\ngument had\nin point of fact been submitted, ther\ne would be no\nattempt to introduce any\nfurther evidence, oi\nanything in\nthe nature of\nit. Su\nih a thing\nnever\nentered our mind\ns; because, a\ns we view it,\nsuch a\n;hing is scar\ncelye\nonceivable. We ha\nd made our t\nirgument, our\nprincip\nal argument\n. Th\n3 Treaty indeed pro\nvided that it\nthe Tribunal\ndesired\nor if the p\nirties\ndesired, further or\nil argument\nmight be had\nin sup]\niort of the\nwritti\nn argument. Tha\n; was a provision of the\nThe!\n3RESIDENT.-\n-The\n-e is more than thai\nin the prov\nision. If you\nwillrea\nd Article V\nyou i\nvill see that if the\nArbitrators\nlesire further\nelucida\nion with r(\ngard\nto any point, they\nmay require\na written or\nprinted\nMr. C\nJarter.\u2014t:\niatin<\nleed, is true.\nThe!\n^RESIDENT.-\n\u2014Or o\nral argument. Th\nare is a diffei\nence between\nthe prii\nited stateme\nnt or\nargument and the r\naere oral arg\nument.\nMr. (\non the\nJarter.\u2014Y\nTribn\nthere was indeed a\nnal itself, that if i\nprovision, lin\n: desired tha\nlited to action\nt some point\nthat em\npurpose\nsuch desire (\n5 to the Trib\nucida\nunal.\nNothing of the so\nre had been\nrt took place\nation for that\n. The cause,\ns the counse\n1 was\nad in\nconcerned, must be\nregarded as\nTiment; and\nnVTonTyhfa\ncondith\nm for argum\njut, bi\nit with the principa\nargument hi\nmng actually\nbeen in\nade, Thatv\n\u2022as its\ncondition. 90 ARGUMENTS ON PRELIMINARY MOTIONS.\nWhile it is in that condition, we receive from the Agent of the British\nGovernment a paper purporting to be a supplementary report of the\nBritish Commissioners appointed under the terms of one of Articles of\nthe Treaty\u2014with notice that it had been delivered to the members of\nthe Tribunal. To say that we were surprised would but faintly express\nour emotions upon the receipt of a document of that sort. There was\nbut one course, in our view, to take in regard to it, and that was to\nreturn it immediately to those who sent it and to return it, with the\nstatement that we objected to any paper being placed before the Tribunal\nat a time and in a manner not allowed by the terms of the Treaty.\nWhere should we be if such a course were permitted? In the course\nof an experience at the bar now not very short, I have had all that I\ncould, by any possibility, do to establish my side of a controversy\nagainst the arguments of my adversaries. To oppose their arguments,\nto overcome them, is all, certainly, that I could ever undertake to be\nable to do. But if my adversaries, in addition to the ability to answer\nmy arguments by their arguments, could answer them also by the introduction of new evidence, the case would indeed be one for which I had\nno resources at all. That was what I felt about it, and what my associates felt about it.\nThat such a thing could be done at all was inconceivable to us. The\nway in which it was done was a matter which added to the amazement.\nThe Tribunal was not asked whether it would receive a paper of that\nsort. 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\nthat he had the right to put it before the Tribunal, whether we liked it\nor did not like it.\nSenator Morgan.\u2014Before the separate Arbitrators, you mean ?\nMr. Carter. Before the separate Arbitrators. I confess I am unable\nmyself to distinguish between that act and another which I have never\nseen practiced-, that after a controversy had been finally submitted to\na judicial tribunal, one side should submit to the judges further considerations in the nature of argument. It was not done secretly. I do not\ncomplain of that. Oh no. We were apprised of it, and most distinctly\napprised of it; but what was asserted on the part of our adversaries\nwas that they had the right to do it. Well, if they had the right to do\nit then, they had the right to do it the day after and the day after that;\nand their right consequently had no measure or limitation except their\nown pleasure. That was the nature of the right which they assumed.\nWe immediately informed our adversaries by letter that we returned\nthe paper, that we protested against the submission of it by them to\nthe members of the Tribunal, and that we should make a motion to the\nTribunal that it be dismissed from attention and returned to the source\nfrom which it was received. We received in answer to that a courteous\nletter from our adversaries, apprising us of the ground of their action.\nI will read that letter.\nThe President.\u2014Perhaps Sir Charles will give Mr. Carter the letter\nwhich he has just read to us.\nSir Charles Eussell.\u2014Certainly.\nMr. Carter.\u2014I read.\nThe undersigned, Agent of Her Britannic Majesty, has the honor to acknowledge\nreceipt of the Honorable John W. Poster's communication of this day's date, and in\nreply 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\nfollowed. While all the material bearing upon the whole subject-matter in dispute\nintended to be used by either party was to be submitted to the other party, that\npart 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\ntries, should have been, it is believed, kept distinct from that part which bore on the\nquestions of right, and that the latter should alone, in the first instance, have been\nsubmitted to the Arbitrators; the former, namely, that part relating to Regulations,\nonly when the contingency therefor arose; or, in other words, when the determination of the questions of exclusive right had been arrived at.\nAnd that is a statement, if I understand it, that, according to the\ncontemplation of the Treaty, whatever related to the subject of regulations was not to be submitted, either to the Tribunal or to the opposite\nparty, until a determination had been reached by the Tribunal upon\nwhat is called by my friends upon the other side the questions of right;\nthat then it was to be laid before the Tribunal, for the first time.\nHow does that defend the submission of this paper? That contingency had not yet occurred. The Tribunal has not as yet reached a\ndecision upon what are called the questions of right, or upon any of the\nquestions. It had not determined that the contingency had' arrived\n\u2022 upon which the question of Eegulations should be considered; and\ntherefore, in accordance with the views of the counsel themselves, the\ntime had not as yet arrived when it was proper to submit to the Tribunal\nany such paper as this, if it bore, as they said it did, upon the question\nof Eegulations.\nThey then proceeded:\nIt was upon this principle that the original Case of Great Britain was framed, and\nthis course would have been pursued and been followed, but for the objections raised\nby the United States in Mr. Poster's letter to Mr. Herbert of September 27th 1892.\nIn deference to those representations, and in order to facilitate the progress of the\narbitration, Her Majesty's Government, while maintaining the justice of their contention, furnished to the Government of the United States and to the Arbitrators the\nseparate report of the British Commissioners and its appendices, reserving at the\nsame time-their right, as stated in Lord Rosebery's dispatch to Mr. Herbert of October 13th 1892.\n\"Eeserving their right,\" that is, their right to submit a further report,\norfurther evidence, at the time when the contingency, according to their\n. view of it, was reached; namely after the Tribunal had announced a\ndecision of a certain character upon the questions of exclusive jurisdiction. They said they reserved that right; but whatever right they\nmight or could have reserved, the contingency mentioned in that reservation, namely, the decision by this Tribunal of a certain character, had\nnot arrived, and therefore the submission of the document at the present time was not defended by that reference to the correspondence\nbetween Lord Eosebery and the United States Government.\nFurther they say:\nThe Government of the United States, in presenting to the Arbitrators with their\noriginal Case the separate report of the United States Commissioners had, in the\nopinion of Her Majesty's Government, departed from the mode of procedure contemplated by the Treaty. It was in pursuance of the understanding contained in\nthe correspondence above referred to that Her Majesty's Government furnished to\nthe Agent of the United States and to the Arbitrators the Supplementary Report of \u2022\nthe British Commissioners which was referred to on page 166 D of the British Counter\nCase.\nI do not suppose that there was any understanding effected by the\ncorrespondence referred to; but that will be the subject for future\nobservation.\nThe letter proceeds:\nAt the proper time, Her Majesty's Government will submit to the Arbitrators that\ncopies should remain in the hands of the representatives of United States without\ns referred to them for decision. 92 ARGUMENTS ON PRELIMINARY MOTIONS.\nThat is their statement. It will be observed that in this statement\nthey go back to the time of the original preparation of the Case, speak\nof what they conceive to have been an erroneous construction of the\nTreaty by the United States in the preparation of its Case, and speak\nof their having conformed, in a manner, to that erroneous construction,\nand 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\nwhich it was submitted.\nIt was in this way that the question of the respective views of the\nparties as to how the Cases and Counter Cases should be made up,\nand what they should contain was brought into discussion before this\nTribunal, and it is this reference to the former action of the parties\nwhich has enlarged the scope of the debate which might otherwise\nhave been confined within somewhat narrower limits.\nAs that wide range has been given to it, and as the methods which\nhave been pursued by the parties under the Treaty have been referred\nto in great detail and made the subject of discussion, I must take the\nliberty in these concluding observations, designed as a reply to the\nargument on the part of Her Majesty's Government, to go back to that\noriginal time and very briefly recount the circumstances under which\nthe 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\nwhich have been made by Sir Charles Eussell in reference to evidence.\nThe Tribunal which was created by the Treaty could not well be provided with the ordinary instrumentalities which are employed by courts\nof 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,\nit was not, of course, possible to apply to the Case those rigid rules of\nthe law of evidence which are followed both in Great Britain and in\nthe United States in reference to the introduction of evidence. That,.\nof course, was plain; and it was equally plain, or at all events it was\ncontemplated, that there would be differences of view upon questions\nof fact as well as upon questions of law, and that some means therefore should be provided by which the parties should be enabled to\nestablish their views upon such disputed questions of fact. All that\nthe negotiators of the Treaty could do under the circumstances was to\nprovide the best mode in their power; and while they could not follow\nthe rules of law exactly, to follow them so far as they could, and at\nleast to observe those fundamental principles of equality between parties in the facilities which might be allowed to them for the purpose of\nconducting their respective contentions. The examination and cross-\nexamination of witnesses was impossible; but was it impossible that\neach party should be permitted to answer the proofs and the allegations which his adversary might rely upon? Certainly, not. That\nresult, although not susceptible of being accommodated in the exact\nand perfect way in which it is provided for in municipal Tribunals was '\nstill susceptible of being accomplished in a substantial manner and in\na way sufficient to assure the administration of justice.\nThe 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\nthat evidence, and that although they could not have the benefit in the\nfullest and most complete extent of the ordinary rules which govern\nthe introduction of evidence, still that they would be sufficiently aided ARGUMENTS ON PRELIMINARY MOTIONS. 93\nin that particular, if it were required that each party should submit\nhis Case, his proofs, and his evidence to his adversary to the end that\nthe adversary might criticise them, deny them, contradict them, meet\nthem, modify them, or reply to them. That is an opportunity inseparable from the administration of justice. No proceeding deserves the\nname of being a judicial one unless each of the parties has an opportunity to know beforehand what the allegations of his adversary are,\nand what the proofs are upon which he designs to support those allegations. That facilities should be afforded for that main and essential\nthing is of course absolutely necessary. That is a point which no one\u2014\nI will not say no lawyer\u2014but no intelligent man living under English\nlaw, would think of ignoring or disregarding.\nIf we turn to the Treaty we find that provisions of that soft are\nmade. Article III provides:\nThe printed Case of each of the two parties accompanied by the documents, the\nofficial correspondence and other evidence on which each relies, shall be delivered\nin duplicate to each of the Arbitrators, and to the Agent of the other party as soon\nas may be after the appointment of the members of the Tribunal, but within a period\nnot exceeding four months from the date of the exchange of the ratifications of the\nI suppose there is no question as to the entire lucidity of that clause.\nIt 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\nguide us in respect to proceedings for international arbitration, lawyers\u2014anybody\u2014would easily understand what\" printed Case\" meant.\nIt would be the case upon which you rested your contention; your\nallegations of fact; the evidences, the proofs by which you proposed to\nsupport them; and. the conclusions of law which you drew from them.\nArticle IV provides:\nWithin three months after the delivery on both sides of the printed Case, either\nparty may, in like manner, deliver in duplicate to each of the said Arbitrators and\nto the Agent of the other party, a Counter Case and additional documents, correspondence and evidence in reply to the Case, documents, correspondence and evidence\nso presented by the other party\nThe Counter Case is provided for there. A method is thus provided\nby which each party might;\u2014not support his original Case\u2014not that\u2014\nbut by which he might reply to the Case of his adversary, contradict\nhis proofs, show them to be untrue, negative his allegations, contradict\nhis conclusions of law. That was the opportunity which was afforded\nby the Counter Case.\nThe function of each of those documents, the office which it is to fill\nin this Arbitration, is carefully prescribed in the Treaty; so carefully\nand so clearly that no one could, by any possibility, misinterpret it.\nI may be permitted to say something in relation to the mode followed\nby the Government of the United States in the preparation of its Case;\nand in order to do that, so that the learned Arbitrators may understand\nit, I should allude very briefly to what the presumable nature of the\nproofs was at the time when the parties were called npon to prepare\ntheir original Cases. What were the questions? I shall not stop to\nread them from the Treaty, but shall describe them generally.\nIn the first place, there were certain questions as to a jurisdictional\npower or authority over Behring Sea asserted by the United States to\nhave been in some manner derived from Eussia, what my learned friend\nSir Charles Eussell, has well enough styled a derivative title or right.\nIn the next place, there was the question of the right of property in\nthe seal herds and in the industry established upon the Pribiloff Islands 94\nARGUMENTS ON PRELIMINARY MOTIONS*\nof maintaining those herds, which was asserted by the United States-\nquestions of property. Both of these were correctly described by Sir\nCharles as questions of right.\nIn the next place, there was the question what regulations might be\nnecessary for the purpose of protecting the seals from extermination;\nwhich question by the terms of the Treaty was not, in the order of\ndetermination which the Arbitrators were to adopt, to be determined\nuntil after they had made a determination of the questions relating to\nexclusive jurisdiction; and not then, unless that determination was\nsuch as would require the concurrence of Great Britain in regulations\nfor the purpose of preserving the seals. There was that order prescribed by the Treaty in respect to the consideration of the questions\nby the Arbitrators.\nNow, as to the first of these three questions\u2014that relating to the\njurisdictional power or authority supposed to have been derived from\nEussia, there was not, it was to be presumed, any dispute whatever in\nthe evidence. It all rested upon documents supposed to be accessible\nby both parties. I will not say that it was not possible that dispute\nmight arise upon some question of fact, but at least it was not very\nprobable; and in the course of diplomatic discussions respecting that\nquestion, I do not think any serious dispute-had ever arisen in reference to any fact. The discussion was mainly in respect to the nature\nand interpretation of documents known to the world, and in the possession of both parties.\nWith respect, however, to the question of property in the seals the\ncase was quite different. There, dispute, conflict, and a great deal of\nit, was to be apprehended. The question as to whether the United\nStates had a property in the seals or not depended of course upon the\nnature and the habits of that animal, as all questions of property in\nanimals depend upon the nature and habits of the animals; and what\nthe nature and habits of those animals were, in many particulars, it\nwas foreseen from the start might be the subject of very serious dispute\nupon which much conflict of testimony would be anticipated. Where\nwere we to go for information in reference to the nature and habits of\nseals, and the modes by which they were pursued and captured and\napplied to the purposes of mankind? There was a great variety of\nsources of evidence. There were the persons in charge of the Pribyloff Islands, the agents of the United States engaged in maintaining\nthat industry there, their statements founded upon personal knowledge, I\ntheir reports, and all of these might be resorted to In addition to\nthat, there were the Indians along the coast, who followed these seals\nin their migrations, and who had made for a long series of years, to a\ncertain limited extent, the pursuit of those seals a part of their occupation. Their knowledge could be appealed to.\nIn the next place, there was a large body of mariners connected with\nthe vessels engaged in pelagic sealing, masters of the vessels, officers\nof the vessels, seamen, hunters, all of them more or less familiar with\nthe modes in which pelagic sealing was conducted.\nI need not say here that every one could see that the great body of\nthese witnesses belonged to a class whose statements would be very\nlikely to conflict with each other, sometimes because they are dishonest,\nsometimes because theyare ignorant, sometimes because they are inexact; but, from a hundred reasons, we know that they are apt to conflict\nwith each other.\nThis whole subject, therefore, was encumbered with the possibility,\nnay, the probability, that a great many of the allegations made by the ARGUMENTS ON PRELIMINARY MOTIONS. 95\nrespective parties would be drawn into serious dispute; and the contentions of the several parties were to be supported by such evidence\nas they couhLobtaiB.\nThe President.\u2014Perhaps we might stop here and resume a little\nlater.\nMr. Carter.\u2014Certainly, Sir.\n(The Tribunal thereupon adjourned for a short time.)\nMr. Carter.\u2014Mr. President, at the time when the Tribunal rose for\nits recess, I was making some observations concerning the conditions\nwhich this case presented at the time when it became necessary for the\nparties to prepare their Cases. I had said that there were three principal questions involved; that upon the first of them, that relating to\nthe jurisdiction of the United States asserted to have been acquired\nfrom Eussia, there was not likely to be any conflict upon the evidence;\nthat upon the next question, that of property, there was likely to be a\ngreat deal of conflict; and I pointed out some of the grounds upon\nwhich it seemed probable that conflict would arise, and the extent of it-\nThen there was the third question, that of regulations. Of course, the\ndetermination of the regulations would involve a consideration of the\nsubject matter to which it was designed that the regulations should be\napplied, and that .was to the seal herd, and the taking of seals; and this\nquestion of regulations, therefore, depended precisely, as the question\nof property depended, upon the nature and habits of the seals, and the\nmodes by which they could be taken, and were usually taken, for the\npurpose of being applied to the uses of commerce and the world.\nThose two questions, the question of property, and the question of\nregulations, would depend absolutely upon the same kind of evidence,\nthat is, evidence disclosing the nature and habits of the animals, and the\nmodes in which they were taken. The questions themselves undoubtedly were entirely distinct. One was a question purely of property\nright; theother was a question what regulations were necessary in the\nabsence of a property right, and where the seals could not be protected\nby the exercise of any rightful power, without the concurrence of other\nGovernments;\u2014what regulations with the concurrence of other Governments were necessary to promote what was assumed to be a common\nobject, namely the preservation of the seals. The questions were\nentirely different in their character, but, nevertheless, the evidence\nupon which they depended was substantially the same.\nNow, the Government of the United-States came to prepare its Case,\nand the question arose how it should prepare it. Upon the first question it was plain enough that the evidence upon which it depended con\nsisted of the documents relating to the history of the Eussian dominion\nover Alaska, and to the various Treaties and diplomatic communications,\naud other documents which from time tc time had made their appear- .\nance in connection with that subject. As to the next question, that of a\nproperty in the seals, it was necessary, of course, to place the facts upon\nwhich we designed to support our contention before the Tribunal.\u2014\nBut how place them? By witnesses? No, we could not call any\nbefore the Tribunal.\u2014What must we do? We must resort to the best\nevidence which under the circumstances was obtainable. That is the\nrule in all judicial Tribunals, where one species of evidence deemed the\nbest is not to be procured for any reason, you must resort to the next\nbest. The only thing, therefore, was to consider what was next the best.\nThere was a variety of sources of evidence, such as the opinions of\nscientific gentlemen, facts well known in natural history, all derivable\nfrom books, which might properly enough be appealed to, but theimme- 96 arguments on preliminary motions.\ndiate facts must be proved by the testimony of witnesses, and, as we\ncould not call them before the Tribunal, we must do the best we could,\nand procure their depositions.\nWell, how was this evidence to be presented. Upon looking to the\nterms 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.\n\"The printed Case of each of the two parties accompanied by the documents, the official correspondence and other evidence upon which each\nrelies shall be delivered in duplicate\". Article IV provides for the\nCounter Case and is to the effect: \" The Counter Case shall be delivered\nin duplicate, with the additional documents, correspondence, and evidence in reply to the Case, documents and correspondence and evidence\nso presented by the other party.\" Therefore it was plain enough that,\nat least,, as to the question of rights derived from Eussia, and as to\nthe property questions, all the evidence should be presented in the\nCase. A provision in the Treaty might suggest a possible doubt in\nreference to the question of regulations. \" If the determination of the\nforegoing questions as to the exclusive jurisdiction of the United States\nshall leave the subject in such position that the concurrence of Great\nBritain is necessary to the establishment of regulations for the proper\nprotection and preservation of the fur seal in, or habitually resorting\nto 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\nextend, and to aid them in that determination, the Eeport of a Joint\nCommission, to be appointed by the respective Governments, shall be\nlaid before them, with such other evidence as either Government may\nsubmit.\"\nThis, as one can easily see, suggests the inquiry whether this Eeport,\ntogether with the other evidence referred to bearing on the question of\nregulations should not be withheld until the Tribunal had reached a\ndetermination that the concurrence of Great Britain was necessary, and\nthat suggestion is further supported by what has been so much dwelt\nupon by my learned friends on the other side\u2014the phraseology in parts\nof the Article IX of the Treaty which is to the effect that \"the Eeports\nshall 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\nArbitrators cannot arise.\" We saw, therefore, that there was a certain\ncontingency in which these Eeports and other evidence bearing on the\nquestion of regulations might not be used by the Arbitrators. Was it\nthe true construction of the Treaty that the Arbitrators were first to\ndetermine the question whether concurrent regulations was necessary\nor not and that until they had made that determination it was not in\norder for them to consider any evidence bearing upon regulations, and\nnot in order that any evidence should be submitted to them ? Was\nthat so? Well, if that were the case, if it was not in order, if it was not\nregular, 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\nprovisions of the Treaty on that point it is very plain that there was but\none way in which evidence was to be submitted, and that was by the\nCase and the Counter Case, and but one Case and one Couuter Case were\nprovided for. In the next place it was perfectly plain by the express\nlanguage of the Treaty that there was to be one written argument, and\nonly one written argument to embrace all the questions; and in the next ARGUMENTS ON PRELIMINARY MOTIONS. 97\nplace it was provided there was to be one decision and only one decision;\nand therefore it seemed to us quite inadmissible that the idea should be\nentertained that there were to be two hearings involving two separate\nsubmissions of evidence. I need not argue that notion further, for it is\nnow 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\nabout it, that all the evidence that we had bearing upon the controversy,\n\" \"ion, or property, or regula-\no submit in support of our\nor that was the only means\nvidence except evidence in\ned faithfully in accordance\n;e by which they designed\nupon the question of juris-\nlestion of regulations, was\nKily and fully submitted to\nae denial, of the other side,\nidd. We had gathered together a\ne to the nature and habits of the\n) establish, as we supposed, that\nto make them the property of the\nidence tending to show that if the\ne question of regulations, that no\ne purpose of preserving the seals,\nic sealing. We exhausted all our\ni to us for the purpose of putting\n:o this Case, to the end that our\nwer it, every fact that we designed\n:ention in this controversy; and I\nipon the other side that there has\nbeen any withholding by us \"of the slightest circumstance from that\nCase 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\nof September, in the first week in September, exchanged. We delivered to the Agent of the-British Government our Case, made up in the\nmanner in which I have described. We then received from them their\nCase, and proceeded, of course, with interest to examine its contents.\nWhat 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\nseal, or the mode by which they were pursued, not an item of evidence\nbearing on the question of property, not an item of evidence bearing on\nthe question of regulations. What could be the intention of this? Is\nit possible, we asked ourselves, that Her Majesty's advisers have been\nof the opinion that they could safely submit the interests of Her Majesty's Government to this Tribunal without any evidence at all upon\nthese subjects; or are they in some manner aware of our opinions\nrespecting the nature and habits of the seal, and believe that those\nopinions are correct so that they cannot in any manner assail them?\nWhat is the view which Her Majesty's Government entertain upon\nthese points ? We were wholly at a loss. The thought did occur to us,\nonly to be dismissed, at first at least, but still the thought did occur to\nus, \"is it possible that the advisers of.Her Majesty's Government have\ndeliberately conceived that they could withhold all evidence upon which\nthey designed to rely upon these questions until they have received our\nCase and know what our position and our evidence is, and theu for the,\nB s. pt xi 7\ntions\u2014all th\ne evide\nh we\ndes\ncontention-\n-mustbt\nsub\nmit\nted ii\nith\u20ac\npointed out\nby the\nTre\naty\nby v\nrhicl\nreply could\nget into\nthe\nban\nthe\nThe Case\nof the L\nnite\nd S\nbates\nwas\nwith that vi\new. Th\newl\nlole\nmass\nof\nto support t\nheir con\ntent\non,\nwhet\nherl\ndiction, the\nquestio\n1 of\npro\npertj\n, or\nplaced in th\ne Case,\nmd\nair!\nlun\nthe observa\nion,the\ncrit\nn, th\nThere was a\nbsolute\ny oc\nthii\nig wi\nthhe\nmultitude o:\ndeposi\nions\nin\nrefei\nenc<\nseals, all es\ntablishii\nIg 0\nr t\u20ac\ng to\ntheir nature\nand ha\noits\n3 sue;\nUnited Stat\nes. We\nhac\nga\nTribunal sh\nould coi\nle t\n0 CO\nnside\nr th\nregulations\nwould b\ne et\nect\nvefc\nrth\nexcept absoi\nute pro\nhi bit\nion\nof p\nilagi\nmeans of in\nformati\n311 t\nlen\naval\nable\nbefore the 1\nrribunal\nand\npu\ntting\nint\nadversaries\nnight consi(\neri\ntand\nans\nto bring for\nward to\nsus\nain\nour\ncont\nhave not as\nyet hea\nid i\nbsu\nggesl\ned vj 98\nARGUMENTS ON PRI\nr evidei\nMINARY MOTIONS.\nfirst time, produce their evidence under the pretext that it is a reply to\nours, 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\nby 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\njurisdiction 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\ncourt of justice employs in order to gain a knowledge of the truth\u2014a\nperfect equality.\nWell, it was a very serious question for the advisers of the United\nmm\nStates to detern\nShould they go c\nwhen the Countei\ndence to which tl\nsho\n\u25a0 th\nunder it. *\nassociate p\ncounsels hs\nsequence w\nArbitratior\nview, woulc\n3 circumstances,\nthen perchance,\nsnse mass of evi-\nly, and go before\nlere had been no\nthat sort was so\ncould not stand\nin? My learned\nand resort i\nabout the i\nSemta\nthat our opi\nnion wa\nsatisfy the (\n>pinions\ntion on that\ncould we do\n? Well\nment and 1\nmmbly i\nevidence as\nit desigi\ntentions; ii\nt other \\\nat c\nif force, beca\n,use\nwe disagi\n. wl\nlich written\npay\n>ers had I\ns be\nen to satisfy\nteel\ninical law\nd hi\nave been son\nlew!\nlat difficul\nof <\nfcBi\ni foi\nought, according to our\nmid then, when we came\ndiction to determine the\nd been made up, and ask\n: Majesty's Government\nle into its original Case.\nbefore the Tribunal, assume that it had\nregularity and propriety in which the C\nit to strike out from the Counter Cas<\neverything which in fairness ought to 1\nThat we could do.\nWell, for the purpose of saving the Arbitration the United States\nresolved upon a course of that character\u2014a conciliatory method, and, if\nit was not agreeable to all of us, I am bound to say that, so far as I am\nconcerned, I think it was a proper one\u2014and they therefore, addressed\na diplomatic communication to the British Government calling its attention to the true interpretation of this Treaty, to the circumstance that\nthe Case of Her Majesty's Government had been made up in violation\nof its plain terms, and to ask that the mistake should now be remedied \"\u2122^\nARGUMENTS ON PRELIMINARY MOTIONS. 99\nso far as possi\nlie. It co\nmedi\ned altogethei\n\\ The counsel\nfor Great Brita\nin were al\neady in posse\nand that knowl-\nedge could not\nbe recalle\nd. Just look\nati\n; for a momei\nlt if you please.\nI ought to call\nthe atten\nion of the le\narne\nd Arbitrators\nto the special\nadvantages wl\nich Great\nBritain thus\ngair\ned. In the\nirst place they\nknew what oui\ngrounds\nwere before c\nomm\nitting themse\nIves. We had\ncommitted our\nselves full\nj and comple\nely\nnot only in re\nspect to allega-\ntion, but in res\nat all. In the\ntheir witnesses\nnature and ha\npect to ev\nals and to t\nyha\ninec\nthe advanta\nses who had, in\nrelation to the\n;dure upon the\nPribylof Islan\nIs. Offici\nal Eeports in\n8om\ne instances c\nontained some-\nthin g which m\nght be un\nderstood to b\nefor\nthe benefit o\n: Great Britain,\nand something\ndeal of a doci\nfor the be\n,nefitoftheC\njharacter out\nnite\nd States. Th\nere was a great\nrty might pick\nsomething whi\nsh it supp\nosed to be to\nivantage and\nthe other party\nWell now, if\napartyws\nis obliged toe\necid\nBin the first ii\nistance whether\nhe would make\narson his witn\ness c\nr not, he won\nId be obliged to\nsay to himself\n\"I must\nuse this mac\nas\nmy witness, h\necanse I do not\nknow that my\nadversar\ny will use hi\nm a\ns his, and tl\nerefore I must\ndecide now, an\nd make hi\nn my witness\nnov\nr.\u00bb What ad\nvantage did the\ncounsel for Gr\njat Britain\ngain in that\npart\nicular. Wiry\n, thev were able\nto look into the Case of\nthe United S\n, and see the various reports\nwhich had bee\nn made pj\nirts of the ev\niden\nce in that Ca\nse, and if there\nwere anything\ntending 1\no favour the\ninte\nrests of Gre<\nit Britain, they\ncould get the\nlenefit of\nt without ma\nkin\u00a3\nr the persons\nwho made the\nreports their \\\nFitnesses\u2014\n-could treat\ntheii\nown witness\nes as being the\nwitnesses of th\ne other pa\nrty, and gain\nall the advantage\ns derivable from\nthat treatmen\nfc\u2014very d<\njcisive somet\nmes\nas the lean\nled Arbitrators\nwill easily unci\nerstand, it\ni judicial controve\njsies.' That\nadvantage they\ngained.\nAnother adv\nantagethe\n,y gained. T\nlere\nwere quite an\number of points\nwhich would pi\nesumably be the subjec\nsof\ndispute, as to\nwhich the depo-\nsitions of witn<\njsses, pel a\ngic sealers, in\nlabi\nants of the co\nasts of the Beh-\nring sea and i\ns vicinity\nwould be cal\ned.\nHow many \\\nritnesses was it\nnecessary to <\nall to est\nablish any p\nartic\n,ular position\n? The United\nStates in fram\nng their (\niged\nto determine that question\nwith no lights\nother thai\ni conjecture,\nmd\nsay. \"We w\nill call so many\nwitnesses, and\nWe think that is sufficient\nto establish th\nby the numb\ner of witnesses\nadduced upon\ndetermine befc\natter as to w\nhich we cannot\nin reference to\nit.\" The Unit\ned States\ndisadvantages.\nBut the conns\nel for Grc\nat Britain w<\name to prepare\ntheir Counter (\n)ase and c\niuld then say\ne United States\nhas introducec\nrill introduce\na dozen more.\nAs to this othe\ne United Sta\nes ]\ntas introduce\nd so many wit-\nnesses: we wil\ne a dozen m\nore;'\nand so on\nhrough all the\ndisputed quest\nit is another\nvery\nimportant a\nthey gained.\n\u2022\n\u2022 advantage\nthat they were\nable to m\neet tbe^testu\naony\nof the Unite\nd^itateTLfali\nthe ways in wl\nich adver\nse testimony\nmay\nbe met\u2014by c\nmtradiction, by\nqualification, L\nling it by the\niuction of otl\nler and adverse 100 ARGUMENTS ON PRELIMINARY MOTIONS.\ntestimony, and the United States could not do it at all. They could\nimpeach our witnesses. They could show that this witness was not to\nbe believed under oath; and that that one could not be believed under\noath. They could show by circumstances, which they might prove by\ndepositions, that a certain class of witnesses were subject to certain\nobjections not perceptible upon the face of the testimony\u2014in a word,\nin all the forms in which the testimony of an adverse party may be met\nand overcome, Great Britain secured the opportunity to do it, and\ndeprived us of it. I am speaking now upon the assumption that when\nshe came to frame her Couuter Case she should incorporate into it a\nlarge mass of evidence relating to the habits of seals and other testi-\n. mony as to the seals. If she did not choose to do it, no matter; all right.\nBut the ability to do it was the advantage which the Agent of Great\nBritain had gained.\nAnd he gained it so that it could not be taken away from him.\nWhatever might be done in the way of obtaining from Great Britain\nevidence she had withheld, nothing could repair the disadvantage to\nwhich we had already subjected ourselv\nlothin\ng could take away\nfrom her the advantage which she had g\n.. Sh\ne had it securely in\nNow under those circumstances the ce\nmrse\nwede\nstermined upon was\nthe conciliatory one; to ask them at one\ne for\nthe ei\nridence upon which\nthey designed to maintain their content\nions,\nso thj\nit we might have it\nbefore the preparation of our Counter C\nase, {\nmd, ii\n' they chose to offer\nit to us, to accept it as a compliance witl\ncondi\ntions of the Treaty,\nalthough it came too late, and although\namei\nmder the enormous\nupon which I have dwelt. Consequent!}\nr on'\nthe 21\nth September 1892,\nMr. Foster thus addressed Mr. Herbert,\nwho1\nsvastl\nlen in charge of the\nBritish Embassy in Washington: \"Depi\nirtnn\nSilt of\nState Washington,\nSeptember 27th 1892. Sir, on the 6th ins\nstant\n,thed\nay after the receipt\nby me of the printed Case of Her Majesi\ntf'sG\nroveri\nlmeut, called for by\nthe provisions of the Arbitration Tree\nity o\nf 189!\n2; in a Conference\nwhich I had the honor to hold with you\natth\neDer.\n\u2022artment of State, I\nmade known to you the painful impres\nision\nwhicl\ni had been created\nupon me by a hasty and cursory examin\nation\nof th\nat case, but I with\nheld any formal representation on the i\nrabje-\nct unt\nal I could have an\nopportunity to lay the matter before the\nPres\nident.\nHis absence from\nthis Capital, and the attendant circumst\nances\ns hav<\ns made it necessary\nfor me to delay a communication to you t\nillth\ne pres\nsent\". The learned\nArbitrators will remember that at this\ntime\nMr. 1\n\u25a0 oster, the Agent of\nnow directed by the President to say that he has observed with surprise\nand extreme regret that the British Case contains no evidence whatever\ntouching the principal facts in dispute, upon which the Tribunal of\nArbitration must in any event largely, and in one event entirely,\ndepend. No proof is presented upon the question submitted by the\nTreaty concerning the right of property or property interest asserted\nby the United States in the seals inhabiting the Piibiloff Islands in :\nBehring sea, or upon the question, also submitted to the Tribunal of -\nArbitration, concerning the concurrent regulations which might be\nnecessary in a certain contingency specified in the Treaty. If it were\nfairly 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\nUnited States could arise, since it is within the exclusive province of ARGUMENTS ON PRELIMINARY MOTIONS. 101\nits Agent in the printed Cas\nthis purpose; I wish to call 5\nHas the United States any Eight, and, if so,\nwhat Eight of Protection\nl^^e^H^f^SS\nutside the ordinary 3-mile\n1 is not only new in the\ngous cases on more than one occasion. The e\ninstance, made only in respect of seals, but 1\nmight be extended on similar grounds to 0\nlisS\nclose of this particular part of the Case of\n\" In the absence of any indication as to th\nUnited States base so unprecedented a clain\ntection of, or property in, animals ferw natur\nfurther consideration of this claim must of n\nit is maintained that, according to the princ\nno property can exist in animals ferw nati\nhigh seas.\" Now then the position taken by\nquestion of law. At the\nGreat Britain it is said:\ni grounds upon which the\npies of International'law,\nGreat Britain by the form\nhe is a subject of property at all is a questic\nof fact. Next, if the United States should h\nor reasons upon which they claim that the\nerty, she Great Britain will answer that clai\nuntil that time. That is to say, if the Ui\nment when the case is made. If they unde\nor two observations to make upon the face of that. In the first place,\nor notTs a questioning But it is a question of law which depends\n-dei\nwas submitted to the Tribunal. If we had any evidence as to th\nnature and habits on which we contended that the property in th\nwas in the United States, it was our business to submit that evidei 102 ARGUMENTS ON PRELIMINARY MOTIONS.\nin our principal Case. We did so fully, completely, unreservedly. If\nGreat Britain had any evidence on which she claimed that seals were\nnot the subject of property, or not the property of the United States,\nit was her duty to submit it in the same manner in her Case, fully,\nunreservedly and completely.\nShe did not do it, nor did she submit an item of evidence upon that\npoint, but postponed the consideration of it in the manner in which I\nhave stated. Now, therefore, having called your Honors attention to\nthe excuse or apology, if excuse or apology it may justly be called, for .\nwithholding from the Case evidence upon that vital and important question, I will proceed with the reading of Secretary Foster's letter:\u2014\"If\nit were fairly to be inferred from this omission that no proofs on these\nimportant points are intended to be offered in behalf of Her Majesty's\nGovernment, no ground for criticism or objection by the Government\nof the United States could arise, since it is within the exclusive province of either party to determine what evidence it will submit in\nrespect to any part of the controversy, or to refrain from submitting\nany evidence at all; but such inference as to the course contemplated\nby the British Government does not seem consistent with certain\nstatements made by its Agent in the printed Case submitted by him\".\nAnd the Secretary then goes on to refer to the statements which I have\nalready read to the learned Arbitrators, and I will not repeat them:\u2014\n\" it must be evident,\" the Secretary continues,\u2014\" to the Government of\nHer Britannic Majesty that, by the provisions of the Treaty, the question whether the United States have any property interest in the seals\nreferred 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\nplain contemplation of the Treaty is that each party shall state in his\nCase what his propositions of law are and the evidence which will be\nrelied upon to bring the case under them to the end that the other party\nmay have a fair opportunity of shewing in his Counter Case that such\nevidence is untrue, or erroneous, or partial, or subject to qualification\nor explanation, for which purpose alone the provision for a Counter\nCase was framed. The British Agent and Counsel must well know\nthat the decision of the two questions above referred to must depend\nupon the evidence produced concerning the nature and habits of the\nfur-seal and the methods of capturing and killing which are consistent\nwith the preservation of the species; and that it is mainly upon these\npoints that-collision and contradiction upon matters of fact and differences in respect to matters of opinion are exhibited by the statements\nof persons likely to be made witnesses; that such witnesses are in\nmany instances under the influence of prejudice and bias and, in some,\nopen to the suspicion of insincerity and untruthfulness; and that the\nonly way by which either party may protect itself against the consequences of falsehood or error is by having an opportunity to detect and\nexpose it.\n\"The President cannot conceal his astonishment that it should be\nassumed that the British Government is at liberty to introduce a whole\nbody of testimony of this character for the first time in its Counter\nCase 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\nGovernments as well as from full information derived from the repre- ARGUMENTS ON PRELIMINARY MOTIONS. 103\nsentatives and agents of Her Majesty's Government and the Canadian\nGovernment in the course of the proceedings and discussions that have\nalready occurred, not only that it is claimed on the part of those Governments that material evidence exists to contradict the facts asserted\nby the Government of the United States, but that a considerable part\nof it has been already taken and prepared by the British Government,\nas to the character, extent and weight of which, however, the Government of the United States is wholly uninformed. The propositions of\nlaw 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\nGovernment, and need not be recapitulated here. In support of these\nassertions of fact a large amount of evidence, and all the evidence the\nGovernment of the United States will offer, except in rebuttal of that\nwhich may be introduced on the other side has been prepared and is\nprinted in the United States Case and its Appendices.\" This letter,\nwhich is too long to read in full, and to which I commend your special\nattention concludes with this request: \"But the President entertains\nthe greatest confidence that when the views herein expressed are\nbrought to the attention of Her Majesty's Government, it will hasten\nto correct the errors which have been made by its representatives in\ncharge of its Case, and he is pleased to give the assurance in advance\nthat 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\nfor the closing of the Counter Cases is to be observed, no time is to be\nlost by the British Government in submitting such proposition as may\nseem 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\nconceives has already been done by the manner in which the British\nCase has been made up. It was an advantage which it is conceived\nwas 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\nevidence on the other side as also that in making up the Eeport of its\nCommissioners it should first be provided with that of their colleagues\nrepresenting the other Government in respect of those points upon\nwhich they have failed to agree. But this disadvantage the United\nStates Government prefers to submit to, though quite aware of its\nimportance, rather than that the arbitration should be put in peril.\n\" I have felt it necessary to enter at some length upon an exposition\nof the views of my Government upon this question, because of its great\ngravity and of the serious consequences which might result from a failure of the two Governments to agree respecting it, and because of the\nearnest 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\nmaintain its position in the controversy submitted to the Tribunal of\nArbitration; but to this end it must be afforded the benefit of those\nsubstantial safeguards against the introduction of error which the judicial systems of all nations so carefully secure and which were designed\nto be secured by the provisions of the Treaty. In the absence of such\nsafeguards no party to a judicial proceeding can be confident of the\nprotection of his rights; indeed, a trial of a question of right, when one\nparty has no opportunity of meeting and answering the allegations\nand 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\nmy learned friend Sir Charles Eussell made the subject of observation 104 ARGUMENTS ON PRELIMINARY MOTIONS.\nyesterday. It was the intimation by Mr. Secretary Foster that the\nCommissioners appointed on the part of Great Britain had waited, or\nmight wait, and, having obtained the Eeport of the Commissioners\nappointed by the United States before they prepared their own, might\nprepare their own with the advantage of a previous knowledge of what\nthe report of the United States Commissioners contained. Well, Sir\nCharles made the observation that he thought,\u2014he hoped and believed\u2014\nthat Mr. Foster would be sorry that he had made that imputation, as he\ncalled it; and he expressed the view that it was a most serious imputation upon Her Majesty's Commissioners,\u2014the notion that they would\nundertake to wait until after the Commissioners of the United States\nhad presented their views, and then present their own with the\nadvantage of a knowledge of the views of the United States Commis-\n\u2022 sioners before them. In the opinion of my learned friend, such a line\nof conduct as that would be in a high degree objectionable and inconsistent with honorable sentiment, and he therefore expressed the regret\nthat Mr. Foster had as he thought\u2014although I do not think it is quite\napparent upon Mr. Foster's statement, made such an imputation as that.\nI have to say that the imputation upon the character of the Commissioners of Great Britain, if made by anybody, has been made by my\nlearned friend, and not by Mr. Foster. If it be an objectionable thing\non the part of the Commissioners of Great Britain to make up a report\nupon the subject committed to them, with a knowledge of what had\nbeen reported by the Commissioners of the United States and at a time\nwhen the Commissioners of the United States could not answer it\u2014if\nthat be an objectionable proceeding inconsistent with sentiments of\nhonour\u2014the Commissioners of Great Britain, allow me to say, have\ndone it. This very Supplementary Eeport is made up, is it not, with\nfull knowledge of what the Commissioners of the United States have\nsaid and with all the advantages possessed by such full knowledge. It\nmay be said, indeed, that the United States Commissioners may now\nif they choose, reply to it. No, they cannot. The Government of the\nUnited States has already declared in the most solemn manner that\naccording to its views of the interpretation of the Treaty the submission\nof documents for evidence of any character to this Tribunal expired\nlong ago. They knew upon the other side that we could not answer it\naccording to our view of the Treaty. Therefore if there is any imputation upon the conduct of the Commissioners of Great Britain, it is an\nimputation not made by us, but by the other side.\nNow this letter of Mr. Secretary Foster was a conciliatory one offering an opportunity to Great Britain to repair as far as possible\u2014it\ncould not be wholly repaired\u2014the disadvantage done to the United\nStates by the mode in which the Case was prepared. It was responded\nto by Lord Eosebery on the 13th October, 1892. . He proceeds in that\nanswer to defend the manner in which the Case on the part of Great\nBritain had been made up and to say that the omission of evidence in\nrelation to the nature and habit of seals was proper, that any introduction of evidence upon that point into the case would be improper, and\nthat the introduction of evidence upon those points in the United States\nCase was also improper, as I understand him.\n\"The Government of Her Britannic Majesty\" he says \"can not admit\nthat there is any foundation for these complaints, which seem to be\nbased upon a construction of the Treaty which, in their belief and in\nthe opinion of their advisers, is erroneous. The scheme of that Treaty\nprovides that the five questions submitted in Article VI should be kept\ndistinct from, and~that the decision thereon should be prior to, the con- ARGUMENTS ON PRELIMINARY MOTIONS. 105\nsideration of any question of concurrent regulations, which consideration would only become necessary in the event of the five points being\ndecided unfavourably to the claim of the United States. The sixth\nArticle requires that a distinct decision shall be given on each of these\npoints, while the seventh Article provides that if the determination of\nthe foregoing questions as to the exclusive jurisdiction of the United\nStates shall leave the subject in such position that the concurrence of\nGreat Britain is necessary to the establishment of regulations for the\nproper protection and preservation of the fur-seal in, or habitually\nresorting to, Behriug Sea, the Arbitrators shall then determine what\nconcurrent regulations are necessary, and that 'to aid them in that\ndetermination, the Eeport of a Joint Commission, to be appointed by\nthe respective Governments, shall be laid before them, with such other\nevidence as either Government may submit.' It will be noted that the\nseventh 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\nseveral Eeports and recommendations of the Commissioners may be submitted to the Arbitrators,' should the contingency therefor arise.' The\nevent therefore on the happening of which the Eeport or Eeports and\nfurther evidence are to be submitted is thus indicated by the Treaty;\u2014\nthat event being the determination of the five points submitted in the\nsixth Article unfavourably to the claim of the United States, and so that\nthe subject would be left in such a position that the concurrence of Great\nBritain would be necessary for the purpose of establishing proper\nregulations.\"\nNow there is his position. His position is, that the. submission of\nthese reports, and the submission of any other evidence, bearing upon\nthe question of regulations is not to take place until the decision of the\nTribunal is made upon the first series of questions. So he declares\nthat the insertion of evidence by the United States bearing upon these\npoints was wholly improper. Well, what does it mean? It means that\nthe time to submit evidence to the Tribunal upon the question of regulations does not arrive until after a decision by the Arbitrators, and that\nit arises then only in a certain contingency. What does that mean?\nThat means, does it not, that there are, possibly, two distinct decisions\nto be made by the Tribunal. That is what it means. You must await\nthe decision of the Tribunal on the first five questions before you can\nsubmit any evidence upon the question of regulations, and then if that\ndecision is in a certain way, then and then only, it is in order to submit\nevidence upon the question of Eegulations. That is the position taken.\nIn other words, it is distinctly and squarely taking the position that\nthere are to be two hearings, two submissions of evidence, two decisions,\nall of which my learned friend nowpronounces, and justly pronounces,\u2014\nI should not say it except I had his authority for it\u2014to be nonsense,\nWell, what does he say in conclusion? \"The Government of Her Britannic Majesty therefore reserved, and in their opinion rightly reserved,\nuntil the time contemplated by Articles VII and IX of the Treaty,\nthe consideration of the question of concurrent regulations, should\nthe contingency therefor arise, and Her Majesty's Government protest\nagainst the introduction, at this stage, of facts touching seal life, which\nthey contend afford no support to the exclusive rights claimed by the\nUnited States, which were the original cause, and formed the first\nobject of this Arbitration.\n\"With regard to the allegation that the United States will have no\nmeans of contradicting, limiting, or qualifying the proof and evidence\nadduced in the British Counter Case, the Government of the United 106\nARGUMENTS ON PRELIMINARY MOTIONS.\nStates appear to have overlooked the provision of Article VII, by\nwhich, with reference to the question of the concurrent regulations,\nexpress 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\nGovernment may-submit further evidence, and that subsequent time\n(the inference is, or the language is, I think in some parts-of this\npaper)\u2014that subsequent time is a matter of procedure to be regulated\nby the Tribunal of Arbitration itself; and when it comes to decide the\nfirst five questions in such a manner as to make the consideration of\nregulations necessary, it will then determine the time, manner, and\nmethod in which the subsequent evidence is to be given, and, in such\ndetermination will, of course, afford full protection to each party as\nagainst the other.\n\" These are the views,\" he goes on to say, \" of the Government of\nHer Britannic Majesty, and they must maintain their correctness. But\nthe Government of the United States have expressed a. different view.\nThey have taken the position that any facts relative to the consideration of concurrent regulations should have been included in the Case\non behalf of Her Britannic Majesty presented under Article III; and\nthat the absence of any statement of such facts places the United\nStates at a disadvantage. The Government of Her Britannic Majesty,\nwhile dissenting from this view, are desirous in every way to facilitate\nthe progress of the Arbitration, and are, therefore, willing to furnish at\nonce to the Government of the United States and to the Arbitrators\nthe separate Eeport of the British Commissioners with its appendices.\nThe Government of the United States are at liberty, so far as they\nthink fit, to treat these documents as part of the Case of the Government of her Britannic Majesty\".\nWell, upon receiving that, it was thought on the part of the United\nStates that it possibly, probably, furnished a way out of the difficulty,\u2014\na way not free from objection\u2014no such way could have been found to get\nout of this difficulty\u2014but still a way which, under the circumstances,\nought to be accepted. If this Eeport of the British Commissioners\nwith its Appendices thus promised, really contained the substance of\nall that Great Britain designed to rely upon in respect to matters of\nseal life, why the United States would have an opportunity of meeting\nit and of overcoming it if they could, in the Counter Case, and they\ntherefore were disposed to accept the offer thus made of this Eeport\nwith its Appendices as a reparation, so far as possible, of what they\nconceived to be the injustice which had been done to themselves.\nSenator Morgan.\u2014But if you will allow me to enquire, Mr. Carter;\ndid that Agreement between the Agents of the Government, or between\nthe two Governments, operate to enlarge the jurisdiction and powers of\nthis Tribunal after the Case of Great Britain had been submitted into\nthe hands of the Arbitrators ?\nMr. Carter.\u2014Well, that is a question, which, I do not say has not\noccurred to us, but which we have never thought it worth while to fully\ndiscuss, or come to any opinion about. I should hope for myself that\nno question would be made about it by the Arbitrators. Under the\ncircumstances the United States Government in its capacity as a Government and through the ordinary measures of diplomatic intercourse\nhas consented to adopt this mode of repairing what it conceives to have\nbeen an original error in the preparation of the Case. I believe it is\nwithin the power of the Government of the United States to enter into\nthat agreement, and that it is binding upon this Tribunal of Arbitration.\nThat is my belief. ARGUMENTS ON PRELIMINARY MOTIONS. 107\nSenator Morgan.\u2014Although it may alter the Treaty?\nMr. Carter.\u2014I do not think it does alter the Treaty in substance.\nIt is in reference to the mode of procedure, and that is a subject as to\nwhich some margin of liberty must be allowed to the respective Governments, and, in the opinion which we have entertained, it is effective\nfor the end. I hope it will be allowed to prove effective, and that no\nquestion will be made to the contrary. Of course, I cannot determine\nfor any member of this Tribunal his views in relation to his duties.\nNow, this Eeport with its appendices was, either at the time of the\nsending of this letter, or very soon after, submitted to the Agent of the\nUnited States.\nSir Eichard Webster.\u2014With the letter.\nMr. Carter.\u2014With the letter.\nGeneral Foster.\u2014It accompanied the letter.\nMr. Carter.\u2014It accompanied the letter; and Mr. Herbert, who had\ncharge of the diplomatic interests of Great Britain in Washington at\nthat time makes a report which is printed in the Appendix to the\nBritish Case, which concerns his doings in the matter. On the 9th of\nNovember, 1892, he addresses this letter to the Earl of Eosebery:\u2014\n\"My Lord, With reference to my telegrams of today, I called at the\nDepartment of State this morning at the request of Mr. Foster when\nhe handed me a note containing the reply of the United States Government to your Lordships despatch of the 13th ultimo in regard to\nthe Behring Sea Arbitration. After briefly recapitulating the princi-\n\u2022 pal points of this communication, copy of which I have the honour to\ninclose herewith, he stated that I might consider the difficulty which\nhad arisen between the two Governments as settled, but he wished at\nthe 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\nit contained all the evidence on which Her Majesty's Government\nintend to rely in regard to pelagic sealing and the habits of the fur-\nseal, and that no fresh matter relating to these subjects would be\nintroduced into the British Couuter Case except in reply to the questions\nraised in the United States Case.\"\nSir Charles Eussell.\u2014That has been observed.\nMr. Carter.\u2014What has been observed, Sir Charles?\nSir Charles Eussell.\u2014Except in so far as matters are stated in\nreply, the Eeport of the British Commissioners contains all the matters\nupon which we rely in regard to pelagic sealing and the habits of the\nfur-seal.\nMr. Carter.\u2014That is your view?\nSir Charles Eussell.\u2014Yes.\nMr. Carter.\u2014Allow me to say that we entertain a very different\nview on the subject, and that the action of Her Majesty's Government\nis as far as possible from an observance of that understanding. Mr.\nHerbert continues:\u2014\" Should they, however, have been mistaken in\nthis assumption, they intend to insist on their interpretation of the\nTreaty before the Tribunal of Arbitration, and to oppose the submission to the Arbitrators of any matters which might be inserted in the\nBritish Counter Case which, in the opinion of the United States,\nshould not be justified as relevant by way of reply to their Case.\nI expressed my gratification at the settlement of the question, and\nasked him whether the United States required an extension of time\noffered by your Lordship for the preparation of their Counter Case.\"\nTo that statement by Mr. Secretary Foster Mr. Herbert made no 108 ARGUMENTS ON PRELIMINARY MOTIONS.\nresponse other than that of consent to be implied from making no\nqualification of it. That the controversy was settled on the terms and\non the understanding that the Eeport of the Commissioners of Great\nBritain with its Appendices contained all upon which the British Government intended to rely as to the nature, and habits of fur seals,\nexcept so far as concerned matters which might be relevant by way of\nreply to what was contained in the United States Case, and no diplomatic representation to the contrary has ever been received from that\nwritten to the United States.\nNow, Mr. Foster, notwithstanding this oral communication with him,\naddressed a further note, which was delivered on that day, and which\nwas the subject of Mr. Herbert's observations just read,\u2014it was that\nof 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\noriginal character intended to support the contention in chief of the\nrespective parties should be presented in the original Case, and the\nCounter Case be limited to evidence in reply. All that argument he\ngoes over in this reply, which is too long for me to read to the learned\nArbitrators; but some of its closing observations I will read.\n\"I entirely agree with the observation of Lord Eosebery, to the\neffect that the right of property in fur seals depends upon questions\nof law; but I conceive that the precise questions of law cannot be\nknown, and cannot, therefore, be determined, until the facts out of\nwhich they arise are known; and I cannot concur with Lord Eosebery\nin the view which appears to be entertained by him, that the facts\nconcerning the nature and habits of fur-seals, and the modes by which\ntheir increase may be made subservient to the uses of man without\nendangering the existence of the stock, are not pertinent to the claim\nof the United States to a property interest. On the contrary, I regard\nthese facts as in the highest degree important. Having thus expressed\nthe views entertained by the Government of the United States upon\nthe argument of Lord Eosebery in support of his interpretation of the\nTreaty, it remains for me to add that I am instructed by the President\nto say that he appreciates the spirit of equity and liberality in which\nLord Eosebery, while insisting upon his own interpretation, practically,\nto some extent at least, and I hope fully, yields to the Government of\nthe United States the benefit of its interpretation by furnishing to the\nlatter the separate Eeport of Her Majesty's Commissioners, with the\npermission that the same be treated as part of the original Case on\nthe part of Great Britain. If, as I believe and assume, this Eeport\ncontains substantially all the matter which Her Majesty's Government\nwill rely upon to support its contentions in respect to the nature and\nhabits of fur-seals, and the modes of capturing them I entertain a\nconfident hope that all further difficulty upon the questions discussed\nin this note may be avoided. I deem it necessary, however, to say\nthat the Government of the United States will, should occasion arise,\nfirmly insist upon its interpretation of the Treaty, and that it reserves\nthe right to protest against and oppose the submission to, and reception by the Arbitrators of any matter which may be inserted in the\nBritish Counter Case which may not be justified as relevant byway of\nreply to the case of the United States\".\nWell, that I submit to the learned Arbitrators seemed to place the\nquestion in this condition. A great advantage as we claim had been\ntaken over the United States by Great Britain in the manner in which\nthe Case on the part of Great Britain had been made out. That ad van' ARGUMENTS ON PRELIMINARY MO\ntage she could not\nUnited States wei\nshe intended to re\nand habits of thes<\nitsappeudiceswas\nintended to rely ii]\nway of reply, and\nat it might be reduced if the\nill the evidence upon which\nupor\nid habits of seals o\nginal contention ai\nwould properl_\nBritain.\nNow I come to the reception of the Counter Case. In due time the\nCounter Case on the part of Great Britain arrived and was examined\nby us and what did we find? That it contained no new evidence in\naddition to that furnished by the Eeport of the British Commissioners\niditsAppendic\nFai\nid ;\nI habits; it hae\nidei\nost Wl1\niQdthe-datU\nre and h\nabitsof t\nhe fur seals.\nSoi\nne of th\nsse depositions\nto us. Othc\nrs^erf\nalCs\n; bu\nise had t\nt almost\neen submitted\nthe whole of it\ntention by G\nSfcBri\nause it was p\nthe nature a\nudh\ntly germ\nhe fur seals.\nEverythin\nhing tei\nation to the\nhew at what\ntim\ne and ha\nbits of the fur\nome upon the\nIslands, hoi\nv long t\nhey rema\ncon\n-se of th\neir migration,\nwhether the\n>ack or nc\nt, or, whethe\nlen the i\nemales go out\nupon Behrii\ng sea th\ney go out\nose\nof food,\nind how often\nwhenthataq\nfestion^\nhat ques\nsss\ns\nhe question of\nnd over again\nang the views\nre in no sense\nits original case. The\nma\nepi,\nBritish Counter\nwhose depositio\nbelieved upon c\ned by the United States in\nailed, and\nnot to be\nnts which\nTh\nthis case had t\nWe could not do that iu respect t\nbut settled it upon the basis that no evidence othe 110\nARGUMENTS ON PRELIMINARY MOTIONS.\nin the Eeport of the British Commissioners should be received. Well,\nwe felt injured when we found that a contrary course had been adopted.\nMy learned friend has spoken about an eagerness on our part to shew\na grievance. I admit we felt one. We felt one at each of these steps\nwhich I have been describing. We could not feel otherwise; and I\nsubmit it to the candor of every Gentleman upon this Tribunal\nwhether we were not justified in having that sentiment of grievance.\nWe did feel it. But what were we to do? There was only one course\nleft 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\nmight move to strike out all matter which ought to have been inserted\nin the original Case. We have not done that. Why have we not done\nthat? Well, there are several reasons for that. We could make an\noverwhelming case-calling upon this Tribunal to reject that matter.\nBut what would be the consequence of that? One of two things.\nGreat Britain might withdraw from this Arbitration if she could. It\nis a question if she could not even then. But, if she could not do that,\nan 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,\u2014a postponement,\u2014a very long\npostponement for the purpose of enabling them to put themselves recti in\ncuria. Well, we cannot afford to delay. These poor seals are suffering,\nor 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\nagain to the mercy of pelagic sealing sealers? If the Tribunal should\nstrike out the matter and then require the Arbitration to proceed, the\nrepresentatives of Great Britain could not complain of such a decision.\nThe difficulty would be one they had brought upon themselves, and\nwithout fault upon our part, and the consequences might be justly left\nto fall upon them. But we know the indisposition of a Judicial Tribunal\ndesirous of administering justice in a controversy, to go to the final\ndetermination of it when they feel it to be true, from whatever cause,\nthat all the materials to which they could properly look to ascertain the\ntruth are not before them.\nNo Tribunal intent upon the business of administering substantial\njustice ever enters upon a task of that sort except reluctantly, and I feel\nbound to say also that, so far as I am concerned, nothing is more disagreeable to me\u2014I think it is so with every lawyer\u2014to 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\nreference to the nature and habits of the fur-seals was established on\nthe whole by such a weight of testimony that it could not be seriously\naffected, and that the most important interests would not be imperilled,\nwe concluded to waive our objections to this testimony thus wrongfully\nintroduced, and to let it stand in the Counter Case for what it was worth,\nsubject however to that sort of comment which we are entitled to make\nin reference to it whenever upon the main argument the question arises\nas to the confidence and weight to which it ig entitled.\nThere was one particular, however, in which we felt bound to make\na 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\nCase of Her Majesty's Government as related to new claims for damages as to which no mention was made in the original Case. That\nmotion was made, and was brought on by us at the same time with the\none which I am now arguing; but, at the suggestion and under the\ndirection of the President, the hearing of it was deferred. Now, tha\njust accoui\nhas determined 1\nthat subject by s\nthat determina\nbearing upon i\nTribunal. Tha\ntaken by Lord Eosel\ntwo awards, althougl\n(That is the Eosebery and Foster correspondence.\u2014)\nFor reasons more explicitly stated in correspondence which will be found in the\nthe Tribunal by means of the Case and Counter Case.\nThat is not a correct representation of any wish ever expressed by\nthe United States, or of any views expressed by the United States.\nThe views expressed by the United States were that all original evidence\nupon the question of regulations should go into the Case, and not into\nthe Counter Case.\nLord Eosebery continues: \"The Governmentof Her BritannicMajesty\nhave adduced these arguments under protest, without prejudice to their\nThe Tribunal will observe that the learned counsel for Great Britain\nbery correspondence, that it is not regular or legitimate, or permissible, 112 ARGUMENTS ON PRELIMINARY MOTIONS.\nto submit the evidence upon the subject of regulations fo the Tribunal\nuntil after the decision upon the points mentioned in regard to the\nexclusive jurisdiction over Behring sea. That is their position still.\nMy learned friend, iu the course of his argument yesterday, I think,\nin speaking of the course which Her Majesty's Agent had pursued in\nthe matter, said: \"Why, we did it in good faith; we elid all of this in\ngood faith. You don't deny that, do you? We told you about it\";\nAnd he read this extract from their Counter Case, apprising us of their\ninterpretation: (Mr. Carter read the passage).\nSir Eichard Webster.\u2014We also mention it at page 166 D in the\nCounter Case.\nMr. Carter.\u2014Would you like me to read anything there?\nSir Eichard Webstek.\u2014No; I merely meant that there is a distinct reference to this particular document.\nMr. Carter.\u2014Do I charge bad faith in this matter? I have undertaken to avoid it. Do I really believe that Her Majesty's Agent and\nhis advisers when they came to prepare the Case of Great Britain in\nthis important controversy, said to themselves in effect: \"We will\nteach these If ankee lawyers a trick worth knowing in regard to the\nmanner in which the Case may be made up, whereby we can get the\nopportunity of answering their allegations and evidence and deprive\nthem of the opportunity of answering ours.\" Do I believe that these\ngentlemen concocted any such scheme as that? No; I don't believe it.\n1 would not believe it. No consideration would induce me to believe it.\nI do not think it. I cannot help saying that I think they have acted\nunder an erroneous impression as to the interpretation of the Treaty;\nand I cannot think that they gave to the interpretation of the Treaty\nthat study which its importance demands.\nBut the question of good faith or bael faith is wholly unimportant\nas far as the results are concerned. ' The advantage in either case, they\ngot. It does not diminish the magnitude of the advantage which they\nderive from the course which they took that they did not contrive for\nit. The advantage which they gained is as great, whatever view may\nbe taken of that matter.\nSo also they say: \"Why, we told you that we did it.\" Of course it\nwas not necessary for them to tell us they had done it, when we looked\ninto their Case and saw it did not contain a single word in reference\nto the nature and habits of the fur-seal, and contemplateel the possibility that they might fill their Counter Case with evidence of that\ncharacter. We saw that they had gained their advantage, and it was\nnot necessary for them to tell us so.\nIf 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\nfor the exchange of the Cases. That was the time. We might then\nhave considered how we would make up our Case if they proposed to\nmake up theirs in that manner.\nNow, my learned friend has re-stated the interpretation of Great\nBritain. Upon that interpretation I am going to make, not many\nobservations, but a few, for the purpose to some extent, of showing\nthat they are entirely erroneous. The learned counsel, has dispensed\nwith the necessity, for he says that in part at least, it is erroneous.\nHe says that the notion of two hearings and two decisions is nonsense.\nHe says it is nonsense. I have not said that. Those are his own\nwords in reference to it. But I wish to show that it is entirely erroneous.\nIn the first place, what is the question? The question is as to the\ntime and the manner in which evidence is to be submitted to the Arbi- ARGUMENTS ON\nARY MOTIONS.\ntrators. It is not a question at all as to tl\nwhich the Arbitrators are to determine any <\nto them under the Treaty. That is another\nIn the first place, there is one Case provid\nprovided for by the Treaty in which evidenc.\nniy\nnn which evidence can be submitted at all.\nhearing is provided for, and the day fixed for\nIn the next place, an award is provided for,\ntherefore, that there is to be but one decision\navidence is now all before the Tribunal. It is\nIt will be fully argued orally. The Tribu-\nrpose of decision; they will proceed, in the\n\"le first five questions submitted by\nes the subject in such condition that\nno Eegulations are necessary for the preservation of the fur-seal, they\nwill not consider any Eegulations at all, but make up their decision\nupon the questions which they do decide, and publish it by their award.\nIf, 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\nmitted to them, and also the Eegulations which they determine upon\nand establish, and that aU at one time, and in one document, by one\nThat will be th\ncontention upon\nArticle VII conta\n-11 thedeterm\njurisdiction of tl\nNow '\nat is the\n\u00bbrt that.\nthe\nnited States shall leave the subject in such a\nthat the concurrence of Great Britain is necessary to the estab-\n,eal in or habitually resorting to the Behring Sea, the Arbitra-\n11 then determine what concurrent regulations outside of the\nThat creates d\ndetermine.\" It c\n\"Sha\nappiy\n. It says that the Arbitrators \"shall then\n\u25a0 that the Arbitrators shall then proceed to\nu not think the word \"then\" covers the\nine the concurrent Eegulations, and\nihe report of the joint commission\nthem.\" I mean to say does not the\nn of the phrase so that it means\n_ .jr.\u2014That would be putting in another \"then\"?\nThe President.\u2014No; I mean to say do you not think the word\n\"then\" covers both parts of the phrase? I ask for your opinion.\nMr. Carter.\u2014I don't think it does at all. By grammatical position\nthe word \"then\" does not belong there. If we could gather from the\nTreaty generally that there was to be a separate decision upon the first\nfive questions, and then a reception of evidence upon this point of regulations; if we could gather from the Treaty generally any evidence that\nthat was the purpose and object of the parties, then certainly the word\n\"then\" would qualify the whole matter; but as the Treaty is written\nit is repugnant to it.\nB S, PT XI 8 114 ARGUMENTS ON PRELIMINARY MOTIONS.\nThe President.\u2014That is your point.\nMr. Carter.\u2014Yes. It is plainly repugnant. If you make it qualify\nthat matter, then you have got to have two submissions of evidence,\ntwo hearings, two decisions, and two awards. That is a necessity.\nWell, now, that is precluded absolutely by the Treaty; and we have\nrules of law that whenever the general purpose and spirit of an agreement;\u2014and a Treaty is an agreement\u2014is manifest, and there is some\nparticular clause which is ambiguous, and which maybe read one way,\nor may be read another way, you must read it in accordance with the\ngeneral purpose and spirit of the agreement. Therefore I say at once,\nas this language does not in terms require that the evidence should\nthen be submitted, we must read it in accordance with these other provisions of the Treaty, which do require that there shall be but one\nhearing and one submission of evidence.\nThe President.\u2014Perhaps it would be well to suspend your argument until tomorrow.\nMr. Carter.\u2014I shall have occasion to occupy a little further time,\nnot long, I hope.\nThe Tribunal thereupon adjourned until tomorrow, Friday, April\n7th, 1893, at 11:30 a. m. SIXTH DAY, APRIL 7\u2122, 1893.\nThe President.\u2014Will you please to continue your argument, Mr.\nCarter?\nMr. Carter\u2014Mr. President, my argument yesterday was very\nlargely confined to a history and a description of the modes in which\nthe Case and Counter Case had been prepared, of the different views of\nthe parties respecting the interpretation of the Treaty upon the point as\nto how they should be prepared: The efforts which.had been made to\naccommodate those differences of opinion, the hope which had been\nentertaiued that those differences had been accommodated, the failure\nof that hope, all of which have been subjects of debate by Counsel who\nhave preceded me, and all of which have a bearing, although not a vital\nbearing, on the immediate question before the Tribunal.\nNear the close of the session, however, I was dealing particularly with\nthe support which is supposed by Counsel for Great Britain to be given\nfor their interpretation of the Treaty in the language of the seventh\nArticle. That is the subject, therefore, upon which I shall resume my\nline 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\nbuilt upon it by the Counsel for Great Britain. \" If the determination\nof the foregoing questions as to the exclusive jurisdiction of the United\nStates shall leave the subject in such position that the concurrence of\nGreat Britain is necessary to the establishment of regulations for the\nproper protection and preservation of the fur-seal in, or habitually\nresorting to, the Behring Sea, the Arbitrators shall then determine what\nconcurrent Eegulations outside the jurisdictional limitsof the respective\nGovernments are necessary, and over what waters such Eegulations\nshould extend, and to aid them in that determination the Eeport of a\nJoint Commission, to be appointed by the respective Governments, shall\nbe laid before them, with such other evidence as either Government may\nsubmit.\"\nThe suggestion is, the contention is, that this means that the Eeport\nof the joint Commissioners thus referred to and the other evidence thus\nreferred to are to be laid before the Tribunal after the decision to\nwhich it shall have arrived and not before. I stated at the time, that,\nupon the face of the Article, there was nothing at all unreasonable in\nthat suggestion, and that it might possibly be so; but when you fully\nconsider the character and consequences of thatinterpretation, it seems\nto be wholly inadmissible for these reasons.\u2014First, it supposes that\nthere are to be two decisions by the Tribunal: first a decision upon the\nquestions as to the exclusive jurisdiction of the United States, and\nthen a decision upon the subject of regulations; and if two decisions,\nthen two awards, all of which is in direct repugnance to the terms of\nthe Treaty. In the next place, it supposes that a part of the evidence\nin the Case, and I may add, and should add, by far the most important\nevidence in the Case\u2014more important in the sense that it is the only\npart of the evidence which is disputable\u2014that the disputable part of madef\nend the\nalready\nirthe\nt they\npart ux\nsiderab\nnecessi\nle dis\n;y for\n116 ARGUMENTS ON PRELIMINARY MOTIONS.\nthe evidence is to be laid before the Tribunal at some future time and\nin a manner for which the Treaty makes no distinct provision whatever.\nTt, fl.rmp.ars lmnn the face of the Treaty that most careful provision was\nsion of evidence to each party by the other, to the\nL have an opportunity of answering it. We have\nle only disputable part of the evidence, the only\n3 to be apprehended that there is to be any con-\nnd, therefore, the only part which there is any\ning, is in reference to the nature and habits of the\nseal, and seal life, and so forth. Now, the contention on the other side\nis that, as to the part as to which there is no importance in having an\nopportunity for reply, most careful provision is made for giving an\nopportunity 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\nparticular and special necessity for an opportunity for reply, the Treaty\nhas failed to make any provision. That is so unreasonable, so contrary\nto 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\nunequivocal 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\ntunity each to answer the evidence and allegations of the other, we\nmust at once come to the conclusion, as I respectfully submit, that that\nis 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\neffectually dispose of any support, or of any supposed support, which\nmay be furnished to the contention of Great Britain by the language of\nthe Article VII.\nBut that is not all their argument. They then refer to the language\nof 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\nof each Government to make the joint investigation and Eeport contemplated in the preceding Article VII, and to include the terms of the\nsaid Agreement in the present Convention, to the end that the joint\nand several Eeports and recommendations of said Commissioners may\nbe in due form submitted to the Arbitrators, should the contingency\ntherefor arise, the said Agreement is accordingly herein included as follows \" : And then the. Agreement is stated and it is further added:\n\"These reports shall not be made public until they shall be submitted\nto the Arbitrators, or it shall appear that the contingency of their being\nused by the Arbitrators cannot arise.\" The learned Arbitrators will\nperceive that \"contingency\" is here used in two places, and it is\ninsisted by our friends on the other side that that word \" contingency\"\nrefers to the contingency mentioned (although not mentioned by the\nuse of that very word), in Article VII, namely, the contingency that\nthe Tribunal shall decide the questions, as to the exclusive jurisdiction\nin such a manner as to leave the subject in a condition which would T PRELIMINARY MOTIONS. 117\nthe question of concurrent Eegulations.\nupon the word \"contingency\". That,\nal, nor will I say it is unreasonable. We\nation of any word in any agreement to\niment, and when there is a contingency\nele, they infer that that is the contingency\nell now, we must not take it that it is so,\nall the consequences, the inadmissible and\nbried in the seventh\nr, clear on this point\nhe negotiations and\nly, which led to the\nBhou\nId be resor\nmake that\nse of the d\nArb\nm Panncefe\ne Append!.\nies, and proposes for the first\nsrsv which, presumably, as it\nion on the part of Mr. Blaine,\nthe proposal of the United\nBr Majesty's Government, that 118 ARGUMENTS ON PRELIMINARY MOTIONS.\nitself in the course of our discussions, I do not despair of arriving at a\nsolution which will be satisfactory to all the Governments concerned\".\nHe then goes on to say that this scheme he has prepared and submits\nin an inclosure, and that inclosure is to be found on page 457. It is\nentitled:\u2014\"Draft Convention between Great Britain, Eussia and the\nUnited States of America, in relation to the fur-seal Fishery in the\nBehring's Sea, the sea of Ochotsk, and the adjoining waters \". \"Article\nI. The High Contracting Parties agree to appoint a mixed Commission\nof Experts.\"\u2014here is the first occasion of the suggestion of this Commission of Experts\u2014\"who shall inquire fully into the subject, and\nreport to the High Contracting Parties within two years from the date\nof this Convention the result of their investigations, together with their\nopinions and recommendations on the following questions:\u20141. Whether\nEegulations properly enforced upon the breeding islands (Eobin island\nin the sea of Ochotsk, and the Commander islands and the Pribiloff\nislands, in the Behring's Sea) and in the territorial waters surrounding\nthose islands, are sufficient for the preservation of the fur-seal species.\nH If not, how far from the islands is it necessary that such Eegulations\nshould be enforced in order to preserve the species? 3. In either of\nthe above cases, what should such Eegulations provide? 4. If a close\nseason is required on the breeding islands as well, what extent of\nwaters and what period or periods should it embrace?\"\nThe Commissioners were to be appointed to report for the information of the Governments on those points, and they were to be experts.\n\"Article II. On receipt of the Eeport of the Commission, and of any\nseparate Eeports which maybe made by individual Commissioners, the\nHigh Contracting Parties will proceed forthwith to determine what\nInternational Eegulations, if any, are necessary for the purpose aforesaid, and any Eegulations so agreed upon shall be embodied in a further\nConvention, to which the accession of the other Powers shall be invited.\"\nNow the next stage was to endeavour to come to an agreement upon\nthe basis of such Eeport. \"Article III. In case the High Contracting\ni Parties should be unable to agree upon the Eegulations to be adopted,\nthe questions in difference shall be referred to the arbitration of an\nimpartial Government, who shall duly consider the Eeports hereinbefore\nmentioned, and whose award shall be final, and shall determine the\nconditions of the further Convention.\" As the original suggestion of\nthe whole scheme thus finally came to the form and shape in which it\nnow stands, what did it contemplate?\nThe President.\u2014May 1 ask the gentlemen of the United States\nwhether Eussia, which was supposed to be a party in this intended\nConvention, took part in those negotiations?\nMr. Carter.\u2014Eussia was to a certain extent consulted; and it will\nappear on the face of this suggested scheme that the contemplation was\nthat 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\nshe should be made a participating party.\nThe President.\u2014Mr. Foster might be perhaps aware, and could tell\nus whether the draft of the Convention was communicated in fact to\nEussia, or whether it was a draft that remained between the United\nStates and England, because then, of course, it would have much less\nauthority, I might say.\nMr. Foster.\u2014I am not prepared at this moment to give an explicit\nanswer. I was not at that time Secretary of State, and I could only,\ntherefore, make a reply from my knowledge of the correspondence. I ARGUMENTS ON PRELIMINARY MOTIONS. 119\nknow that previous to this date, a few months previous, the British\nMinister, the Bussian Minister and the then Secretary of State, Mr.\n'Blame, were in active and frequent conference on this subject. I shall\nnave to refresh my memory as to the precise date of their conference in\nconnection with this matter, and I am not, therefore, prepared at this\ntime to give an explicit answer as to whether this particular proposition\nwas formally submitted to the Bussian Minister or not. That can at a\nlater stage, before the discussion closes, be answered.\nSir Charles Eussell.\u2014I may say, Sir, that I am in a position to\nstate- to the Tribunal what the facts were on this point. It was contemplated, as the concluding Article shows, that the accession of other\nPowers should be invited to the Convention; and there were communications with other Powers, but no other Power became a party to the\nConvention.\nThe President.\u2014You will see that this is not a Convention but a\ndraft of a Convention; and the purport of my interrogation was this.\nThe authority of the draft, which is submitted to us by Mr. Carter, and\nused as a part of his argument, will have more or less to be taken into\nconsideration according to the stage of diplomatic proceedings which\nit indicates. Of course, if it had been communicated to Eussia, Mr.\nPhelps as a Diplomatist would certainly acknowledge that it would\nhave had more consistency, and, consequently, more importance, than\nif it was merely a sort of informal draft or a sort of continuation of\nprivate conversations between the American and English Governments,\nor their representatives.\nMr. Phelps.\u2014My learned friend is right in saying that at no time in\nthe progress of these negotiations was any Convention actually entered\ninto between the United States and Eussia; nor did Eussia become\nformally a party to any convention between the United States and\nGreat Britain; but in the years 1887 and 1888 at any rate, when these\nnegotiations were first commenced on this subject, the representatives\nof Eussia in London, as the correspondence that is before you shows\n(though I cannot at this moment refer you to the particular pages),\nwere invited to participate and did participate and gave informally\ntheir sanction to the Agreement and their promise to join it if it should\nbe consummated j but as it never was consummated at any time, that\nfell through. The correspondence, as I have said,\u2014-the diplomatic correspondence\u2014during those years will prove that. How it was as late\n-as 1890, I am at this moment unable to say,\u2014whether there was any\ncorrespondence with Eussia at that time or not.\nSir Eichard Webster.\u2014Might I point out, Sir, that the draft Convention, as to which you have asked the question, is the one submitted\nin the year 1890, as Mr. Phelps points out, long after the date he refers\nto of communications with Eussia. Whatever may have passed with\nreference to communications upon other matters, it will be found in the\ncorrespondence that that draft Convention was not submitted to Eussia,\nnor were they asked to become parties to that; and I think it will\nappear from the concluding words of Article 12 of that draft, that\n1 The High Contracting Parties agree to invite the accession of the\nother Powers to the present Convention\"\u2014I think it will be found, when\nthe correspondence is traced, that the draft Convention was not submitted to Eussia.\nMr. Phelps.\u2014I may say, Sir, that we will have references prepared\nand submitted to the Tribunal as to this correspondence on either side.\nThe President.\u2014However, it was drawn up in such a way as to\nsuppose that Eussia would be a party, so that the other parties, to 120 ARGUMENTS on preliminary motions.\nwhich Sir Eichard Webster alluded, would be parties other than Eussia.\nIt was to be a Convention between three parties.\nMr. Phelps.\u2014There was a correspondence between Mr. Bayard, who\nwas then Secretary of State of the United States, and various other\nPowers on this subject,\u2014Japan, Germany, and some others. So that\nthe United States from the character of their replies had a right to\nexpect, if they were fortunate enough to conclude a Convention with\nGreat Britain, that the adhesion of these other Powers would be given.\nIt was contemplated by both parties that the adhesion would take place,\nif that was ratified between Great Britain and the United States.\nThe President.\u2014And Eussia?\nMr. Phelps.\u2014And Eussia.\nSir Charles Eussell.\u2014This is really very wide of the mark.\nThe President.\u2014My question was perhaps rather more a diplomatic\nthan a judicial one; but my diplomatic colleagues will not be surprised\nat the importance I attach to these details, because they know by the\npractice of diplomatic life that a Convention would scarcely be prepared\nby two parties when it is to result in a Convention between three. There\nis a certain difference which my diplomatic colleagues on the Arbitration will understand; and that was the purport of my observation.\nMr. Carter.\u2014Permit me to say, Sir, that the interrogatory you have\nbeen pleased to address to us and the various answers given to it may\nbecome at some time interesting at least, if not important\u2014to know how\nfar Eussia diel participate in the negotiations in reference to a Treaty\u2014\nhow far she was expected to participate, and when all such participation\nceased. For the present, however, I do not think those enquiries are\nmaterial; and, for the object for which I call the attention of the Tribunal to the proposed draft Convention, they are wholly, as I conceive,\nimmaterial. The purpose which I have in view is to call the attention\nof the Tribunal to the first suggestion of a settlement of this controversy through the combined instrumentality of a joint Commission and\nan Arbitration.\nThe President.\u2014In order to exhaust this, although Mr. Carter does\nnot find it quite material to the point, I would beg permission to remind\nhim of an extract from the despatch of Sir Julian Pauncefote to Mr.\nBlaine received on April the 30th. It is in the appendix of the Case of\nthe United States, Vol. I, page 206\u2014the last paragraph of page 206. Sir\nJulian Pauncefote says: \" I have, out of a deference to your views and to\nthe wishes of the Eussian Minister, adopted the Fishery line described\nin Article V\"\u2014it is quite another object, but it proves that at that\ntime there was a communication with Eussia\u2014\" and which was suggested\nby you at the outset of our negotiations. The draft, of course contemplates the conclusion of a further Convention after full examination of\nthe Eeport of the mixed Commission. It also makes provisions for the\nultimate settlement by Arbitration of any differences which the report\nof the Commission may still fail to adjust.\" That is the draft Convention which you were alluding to.\nMr. Carter.\u2014It is.\nThe President.\u2014It is the same draft.\nMr. Carter.\u2014It is.\nThe President.\u2014That proves that you were in communication with\nEussia more than you thought yourself. That observation is rather an\nadvantage to you.\nMr. Carter.\u2014We may have been in the most intimate and daily\ncommunication with Eussia for all I know, but whether that be so or\nnot, it is foreign to the purpose of my enquiry. ARGUMENTS ON PRELIMINARY MOTIONS. 121\nThe President.\u2014Well, perhaps not quite so; because it alludes to\nthe document and refers to it and therefore gives it, more authority in\na diplomatic point of view at any rate, although not perhaps from a\njudicial point of view.\nMr. Carter.\u2014What I am now on is to know the meaning of the\nword \"contingency\" in the Article IX of the Treaty between the\nUnited States and Great Britain. Allow me to repeat, therefore, that\nthe first suggestion, so far as I am aware, of the scheme of settling this\ncontroversy through the joint instrumentality of a Commission and of\nArbitration is to be found in this note of Sir Julian Pauncefote, and\nthat scheme you will perceive is this. It contemplates the appointment\nof a Commission of Experts to inquire into the whole business of seal\nlife and to report upon the question of Eegulations. It contemplates,\nin the next place, the probability that when that report is received by\nthe two Governments they can conclude without difficulty and without\nany further instrumentality a Convention for the purpose of preserving\nseal life by Eegulations. It contemplates in the next place, that is to\nsay, in the contingency that they should not be able to agree, that the\nquestions as -to which they should disagree should be settled by the\nArbitration of an impartial Government\u2014that was the sort of Arbitration then thought of.\nThe learned Arbitrators will bear in mind, therefore, that the Arbitration thus foreshadowed at this early period was solely confined to\nthe question of Eegulations -necessary to preserve seal life. It was to\nhave nothing to do with Eussian pretensions of dominion in Behring\nsea,\u2014nothing to do with the pretensions of the United States as to\ndominion in Behring sea,\u2014nothing to do with any question of property\nin the United States in the seals, but had solely to do with the question\nof what regulations might be necessary for the purpose of preserving\nI the race of seals. That was the sort of Arbitration proposed, and it\nwas to be limited to that.\nAccording to that scheme, therefore, if the two Governments came to\nan agreement on the basis of the Reports, that would be an end of the\nwhole, business, and there would be no Arbitration, although it was proposed by the Convention that an Arbitration should be provided for, to\nspring into operation in the case of an inability of the two Governments\nto agree, and then to decide as to what Eegulations should be needed.\n\u25a0ffirat was the scheme. You will perceive, therefore, that the Eeports of\nthis Commission would be laid before the arbitration of an impartial\nGovernment in the contingency, and only in the contingency, that the\nGovernments should fail to come to a settlement of the controversy by\nConvention based upon those Eeports. Therefore, at the very outset\nof these negotiations there was a double aspect to the scheme of settlement: (1), an effort to settle without Arbitration; (2), a provision for\ncalling the powers of an Arbitration into operation in case of a failure\nof that effort, and it was only in the contingency of such failure that\nany use would, be made of these Eeports of the Joint Commission in\nany Arbitration. Now, that double aspect thus stamped upon this\nscheme of settlement at the start has been preserved all through the\nnegotiations and is still preserved in this Treaty. In the course of the\nnegotiations, and they were quite long, and many difficulties were\nencountered before the thing was got into actual shape, the scope of\nthe suggested Arbitration was greatly enlarged. Instead of being confined to the question of Eegulations for the preservation of fur seals,\nit was to include questions as to the exclusive jurisdiction in the United\nStates in Behring sea, questions as to the property of the United States 122 ARGUMENTS ON PRELIMINARY MOTIONS.\nin the fur seals, not embraced in the original suggestion,\u2014the scope of\nthe Arbitration was enlarged, but it was still contemplated, although\nan Arbitration was agreed upon and provided for, that it might never\nhave to be resorted to, and would not be resorted to if the parties should\ncome to an agreement by Convention. If the Joint Commissioners\nshould report to the two Governments, and the two Governments should\nfind themselves able to come to an agreementin respect to Eegulations,\nwhy then the contemplation was that this Arbitration should not be\ncarried forward. Of course it would be idle, preposterous indeed, to\ncarry it forward after the whole controversy had been settled by the\nparties,\u2014to call upon Arbitrators to determine what rights there were\nbetween the parties when they had made a settlement with each other\nthat dispensed with the necessity of enquiring into rights at all.\nNow we find that, when they assumed final shape, the Agreement for\nthe Arbitration and the Agreement for the appointment of the Joint\nCommissioners were separate. They were signed separately before the\nTreaty was finally brought out, and those separate instruments thus\nseparately signed are found upon page 9 of the Appendix to the British\nCounter Case, Volume I. This is the text of the Agreement for the\nJoint Commission. \"Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other\nGovernment, all the facts having relation to seal life in Behring sea, and\nthe measures necessary for its proper protection and preservation. The\nfour Commissioners shall, so far as they may be able to agree, make a\njoint Eeport to each of the two Governments; and they shall also report,\neither jointly or severally, to each Government on any points upon which\nthey may be unable to agree. These Eeports shall not be made public\nuntil they shall be submitted to the Arbitrators, or it shall appear that\nthe contingency of their being used by the Arbitrators cannot arise.\"\nNow, this word \"contingency\" occurs there. What is that contingency? Why, it is the same contingency contemplated by the scheme\nof Sir Julian Pauncefote; that is, the contingency that the Government\nshall not be able to come to an agreement by Convention, which should\nsettle this matter without the intervention of an Arbitration.\nMr. Justice Harlan.\u2014Do you recall, Mr. Carter, just here, on what\ndate the Governments informally agreed upon those terms for a Joint\nCommission?\nMr. Carter.\u2014I cannot, Sir.\nThe President.\u2014Article IX refers to an agreement.\nMr. Carter.\u2014I cannot do that now, Sir; but I shall very presently\nrefer to evidence which will give you some information upon that point.\nThe President.\u2014Was the agreement by which the Governments\nagreed upon a Joint Investigation and Eeport, the object of a formal\nconvention, or was it .merely an \"unofficial\" agreement?\nMr. Justice Harlan.\u2014I have a general recollection, from looking at I\nthe documents before this hearing was commenced, that the terms for\nthis Commission, just as they appear in Article IX, were assented toby\nthe two Governments as early as July, 1891.\nMr. Carter.\u2014I shall be able to show that they were assented to\nbefore that.\nSenator Morgan.\u2014I would like to enquire, from anyone who has the\ninformation, whether these Commissioners had not, in fact, made their\nexaminations and completed their labors on the Pribilof Islands before 7-\nthis Treaty was signed?\nMr. Carter.\u2014Well, they had been appointed long before that. How\nfar they had proceeded with their labors I cannot say; but the matter which\neeed.-\nto will t\n-I am in\nhrowl\nthe Tr<\nMr.\nFoster.\nactual\nPRELIMINARy MOTIONS. 123\nto call the attention of the learned Aibi-\nCommissioners had been investigating the subject before the Treaty\nwas actually signed; but now, whether that appears upon the Cases\nanywhere, or not, I do not know.\nMr. Carter.\u2014Well, I am going to show it, if the learned Arbitrator\nwill allow me. What has been said shows, and I suppose that I may\nappeal to the diplomatic knowledge of the President to the effect that\nagreements between two Governments, which it is contemplated will be\neventually put in the form of a Treaty and regularly ratified, and which\nagreements can have no vital force until they are so incorporated in a\nand acted upon long before the Treaty, it being supposed by both\nparties that they have come to such a conclusion upon all the details\nthat there will be no difficulty in procuring the settlement of the Treaty\nand its ratification. That took place here. This Treaty is dated on the\n29th 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\n24th June, 1891, the Marquis of Salisbury appointed Sir George Baden-\nPowell and Dr. Dawson Her Majesty's Commissioners, to proceed to\nBehring Sea and make these proposed investigations, and they went\nimmediately thereafter and engaged in the work, and an actual com-\n> mission was issued to them, as you will observe.\nSenator Morgan.\u2014I wish to enquire, Mr. Carter, if you will allow\n|me, whether their Eeport which is embraced in the British Case was\nbased upon that investigation?\nMr. Carter.\u2014It was. That very Eeport is the one based upon th at\ninvestigation,\u2014having no other foundation. You will see all this from\nthe preliminary pages of the British Eeport itself. It begins by instructions to the British Commissioners, from the Marquis of Salisbury, and\nthey are dated at the Foreign Office, June 24th, 1891, and on the sixth\nof these preliminary pages is the actual Commission issued to them as\nplommissioners; and that is dated the 22d Juue, 1891, nearly a year\nI before the ratification of the Treaty.\nmissi\nake the\nments found themselves able to come to an agreement respecting the\nmeasures necessary for the preservation of fur seals, no Arbitration\nwould be needed, and none would be called. It was only in the event\nthat they should be unable to agree that there would be any occasion\nfor an Arbitration at all, and that is the contingency, and that alone is\nThe President.\u2014Do- you mean that this is the same contingency\nwhich is specified in Article VII,\u2014that both contingencies are the same\nMr. Carter.\u2014The word \" contingency \u00bb does not occur, may it please\nI the learned Arbitrator, in Article VII of the Treaty. 124 ARGUMENTS ON PRELIMINARY MOTIONS.\nThe President.\u2014The word does not occur, but the meaning does.\nMr. Carter.\u2014No. But I have dealt with the meaning there. I am\nnow dealing with the argument of my learned friends upon the other\nside based upon this word \" contingency\", and what that means, and I\nthink 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\nthe contingency that there should be any Arbitration at all.\nI must make one modification of that:\u2014\" the contingency that there\nshould be any Arbitration at all\" upon the subject of Eights or Eegu- j\nlations. In the course of the negotiation, Great Britain had made\nclaims for damages, and provisions were inserted in the Treaty on that\nscore, and it might still be necessary, as those were in reference to past\noccurrences, and would not be settled by the establishment of Eegulations for the future\u2014it might still be necessary for the Arbitration to\ndischarge its functions and to be called together upon the question of\ndamages, but upon that question alone.\nNow then, to sum up a little the substance of this debate\u2014what has\nbeen the contention of Great Britain on this subject? At the start,\nthey began with the interpretation that all evidence in respect of Eegulations, at least, and, as they say, all evidence in relation to seal life,\nwas not admissible until after a decision by the Arbitrators adverse to\nthe claims of the United States in respect to the questions of exclusive\njurisdiction, and that it was not until that decision was made that any\nevidence would be competent or admissible in relation to seal life, and\nthat, therefore, any submission of evidence in relation to seal life in the\nCase by either party was irregular, not allowed by the Treaty\u2014a thing\nwhich they protested against, and reserved their right to move the\nTribunal to strike out.\nThat was their attitude, and the explanatory note of Lord Eosebery\nin reference to that was in answer to the suggestions from the Government of the United States that this provided no method by which\neither party could answer the allegations of the other in respect to the\nmost important part of the controversy. His answer to that was:\n\"That is a method of procedure\"; and the intimation was that it was\nfor the Tribunal itself to regulate it; so that after it had come to its\ndecision upon these questions of exclusive jurisdiction and found it\nnecessary to enquire into the question of concurrent regulations, it\nwould then establish some system of procedure by which the parties\nwould be apprised of the evidence relied upon by each other, and be\nable to meet it, making necessary a new hearing and a new decision.\nThat was their first position. The main features of it are still asserted\nby Counsel on the other side; but the absurdity of supposing that\nthere are to be two hearings, two submissions of evidence, two decisions,\nand two awards, has\" struck my learned friend. Sir Charles Eussell so\nforcibly that he has been obliged to retire from that, and he says, if I\ncorrectly understood him in the course of his argument, that there is\nto be no such thing\u2014there is not to be a decision, but he insists that\nthe evidence still is not admissible, until the Tribunal has determined .\nthat it must enter upon the question of regulations, but that determination it is not necessary to evidence by a judgment, or by a decision,\nbut by an intimation\u2014that was the word, I think,\u2014by an \" intimation\".\nSir Charles Eussell.\u2014An intimation of a determinatiem.\nMr. Carter.\u2014Yes, by \"an intimation of a determination\" an intimation that it had reached such and such a determination.\nNow you will have observed all through this debate on the part of\nthe Counsel for Great Britain that there is an assumption that this ARGUMENTS ON PRELIMINARY MOTIONS. 125\nevidence in relation to seal life\u2014this vitally important part of the\nevidence, and only disputable part\u2014has a bearing only upon the question of regulations, or mainly that, thus defending the course pursued\nby Her Majesty's Government in not incorporating any part of that\nevidence into the original Case.\nFor you will perceive, that if* evidence bearing upon the subject of\nseal life is competent and relevant upon the question of property, why,\nthen, consistently with their own interpretation of the Treaty, they\nwere bound to incorporate it into their original Case. For the question\nof property is one of the five questions which it is made necessary by\nthe provisions of the Treaty that a categorical response should be\ngiven by the Arbitrators. The question of property is among them.\nThe question of Eegulations is put by itself; but the question of\nproperty is among the first five, and if this evidence in relation to seal\nlife is competent and relevant upon the question of property, why they\nshould have put it into the original Case and not have reserved it, as\nthey did reserve it, until their Counter Case. Is evidence as to the\nnature and habits of the fur seals not competent upon the question of\nproperty? How can that idea be entertained for a moment? How can\nthe question of property be otherwise determined? Suppose both parties had acted upon the view suggested by Sir Charles Eussell and\nmaintained constantly by the Government of Great Britain\u2014I will not\nsay maintained constantly, for they, with great respect, are inconsistent upon that point, as I shall presently show\u2014but urgently insisted\nupon at times, namely, that the testimony in relation to seal life is not\ncompetent upon the question of property. Suppose both sides had\nproceeded upon that view, and scrupulously omitted from their several\nCases any matter or evidence relating to seal life, and the Arbitration >\nhad gone on with the Cases prepared in that manner, this Tribunal\ns? would then be called upon to determine the question of property without any evidence before it except the fact that seals were seals\u2014that\nis where we would have been. Now I respectfully submit to the\nTribunal that that notion that evidence in relation to seal life is not\ncompetent upon the question of property is\u2014I do not wish to use the\nword in any disrespectful sense\u2014but it is preposterous. Such evidence\nis directly relevant to the question of property\u2014principally relevant to\nSthe question of property, and it is the only evidence upon which the\nI question of property can be properly decided.\nLet me say in the next place, that this notion that they have brought\nforward for the purpose of defending their conduct in the preparation\nof their Case and Counter Case derives no countenance from the\ndiplomatic communications between the parties, or from the provisions\nof the Treaty itself and those other instruments which are collateral\nto the Treaty. Let me call your Honors' attention to the Modus vivendi\nof 1891. It is contained in Volume I of the Appendix to the United\nStates Case, page 317; that part of it to which I invoke especial\nattention is the fourth Article.\nThe President.\u2014May I ask what is the date of that Modus vivendi?\nMr. Carter.\u2014It is June the 15th, 1891.\nThe President.\u2014Quite concurrently with the nomination of the\nJoint Commission,\u2014quite at the same time?\nMr. Carter.\u2014Yes, Sir.\nThe President.\u2014They concurred together?\nMr. Carter.\u2014Certainly, Sir. .\nThe President. They concurred in time with the nomination of\nthe Joint Commission. 126 ARGUMENTS ON PRELIMINARY MOTIONS.\nMr. Carter.\u2014This Article IV, which I am going to read to you, provides for the investigation which those Commissioners made.\u2014\" (4) In\norder to facilitate such proper inquiries as Her Majesty's Government\nmay desire to make, with a view to the presentation of the case of that\nGovernment before Arbitrators, and in expectation that an agreement\nfor arbitration may be arrived at, it is agreed that suitable persous\ndesignated by Great Britain will be permitted at any time, upon application, to visit or to remain upon the seal islands during the present\nsealing season for that purpose.\" Under the provisions of that Article\nHer Majesty's Government appointed these two very Commissioners to\nmake those investigations, and appointed no other people; and it was\nfor the purpose of enabling them to present their Case properly that\nthis provision was to be inserted; so that the notion that knowledge\nin respect to the nature and habits of seals and of seal life had no\nplace in the presentation of the Case is a totally erroneous one, contradicted by both parties by the Agreement into which they entered.\nAnd Sir Julian Pauncefote writes to Mr. Wharton on the 21st of\nJune:\nSir: I have the honor to inform you that I have received a communication from\nHer Majesty's Principal Secretary of State for Foreign Affairs to the effect that the\nQueen has been graciously pleased, to appoint Sir George Baden-Powell, M. P., and\nProf. Dawson Commissioners to proceed to the Pribilof Islands for the purpose of\nexamining 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\nbe granted to these gentlemen to visit and remain on those islands during the current fishery season.\nAnd in this communication of Mr. Wharton, then in charge of the\n. Department of State of the United States, to Sir Julian Pauncefote he\nsaid.\u2014this is dated June 6,1891:\nBut in view of the fact that the evidence which the respective Governments will\npresent to the Arbitrators (if that happy solution of the pending difficulties shall\nbe attained,) must be collected during the present season, and as the definite agreement for arbitration cannot be concluded contemporaneously with this agreement,\nthe President directs me to say that he is quite willing to agree that Her Majesty's\nGovernment may send to the Seal Islands, with a view of collecting the facts that\nmay be involved in an arbitration, and especially facts relating to seal life and the\nresults of the methods which have been pursued in the killing of seals, a suitable\nperson or persons to make the necessary observations. The present and the comparative conditions of the rookeries may become an important consideration before\nArbitrators in a certain event, and the President would, not ask that the evidence\nupon this subject should be wholly from one side.\nI am upon the point which our friends on the other side have insisted\nupon before your Honors, that this evidence in relation to the nature\nand habits of the seals is pertinent only to the question of regulations.\nI have to say that that is inconsistent with their own views expressed\nelsewhere; and not only expressed but acted upon.\nI now call the attention of the learned Arbitrators to Chap. 7 of the\nBritish Counter Case, which is to be found upon page 100. They are\nthere dealing with the question of property, and that dealing with the\nquestion of property is extended from Chap. 7, p. 100, to Chap. 8, p.\n154. There are fifty-four pages devoted to the question of property in\nfur-seals and to the position taken by the United States in that behalf,\nand the position taken by Great Britain in that behalf.\nSir Charles Eussell.\u2014Will you kindly read the heading of the\nchapter?\nMr. Carter.\u2014Yes:\ns of fact put forward by the United States ii ARGUMENTS ON PRELIMINARY MOTIONS. 127\nAnd point Five of article 6 I will now read:\n\u2022 ?t?8 ?e United States any right, and if so what right, of protection or property\nm the fur-seals frequenting the islands of the United States in Behring Sea, when\nsuch seals are found outside the ordinary three-mile limit?\nThat is the Article which presents the question of property, and the\ntitle to this chapter which my learned friend desires me to read is,\n\"Consideration of allegations of fact put forward by the United States\nin connection with point 5 of article 6.\" There is a devotion of 100\npages to the consideration of testimony in relation to the nature and\nhabits of seals and the characteristics of seal life as bearing upon the\nquestion of property\u2014all connected together in an argumentative chain\nof reasoning, designed to show that upon those facts the United States\nhas no property in them. I mean to submit upon this, may it please\nthe learned Arbitrators, that the assertion of the learned counsel upon\nthe other side that the questions relating to seal life are not applicable\nto any of the first five questions stated, and therefore should not go\ninto the Case, are contradicted by their own action.\nMr. Justice Harlan.\u2014Mr. Carter, I find on looking at the proof of\nthe debate when Sir Charles Eussell was upon his feet, assuming this\nto be correct, I put to him the question\u2014he was discussing the origin\nor basis of the right of property:\nWl\nof th\nThe answer was:\nI have said that in ray judgment, so far as the facts of seal life are material for\nthe question of law as to property in seals, they are not in dispute.\nThen I put the questions in a different form:\nWhen we come to determine the question if the United States has any right or\nproperty in these seals or in the herd, do we consider, and ought we to take into\nconsideration, the facts in seal life?\nThe answer reported is:\nCertainly. So far as they are material, certainly.\nSir Charles Eussell.\u2014So far as they are material, certainly.\nMr. Carter.\u2014Yes, Sir; and yet the contention on the part of the\nlearned counsel has been, and the contention throughout this diplomatic correspondence has been\u2014and it is upon that contention that\nthey defend their withholding of evidence in relation to seal life\u2014that\nit does not bear upon the question of property and does bear upon the\nquestion of regulations.\nThe President.\u2014Is there no evidence adduced by Great Britain in\nsupport of these 100 pages of the Counter Case which you have just\nalluded to.\nMr. Carter.\u2014None in their case.\nThe President.\u2014But in the Counter Case.\nMr. Carter.\u2014Oh, volumes of it, and for the first time; and that is\nwhat we complain of. If evidence upon the question of seal life bore\nupon the question of property, that was one of the five questions upon\nwhich the arbitrators were called upon to make explicit answers; and\neverything bearing upon those questions is by the concession of all\nparties to be incorporated into the original Case, and yet not one word\nin respect to seal life was put by them iu their original Case.\nThat, the learned President will remember, was the subject of our\ncomplaint; and the answer to our complaint was, \"That evidence is not\nrelevant here; it bears only upon the question of regulations, and the 128 arguments on preliminary motions.\ntime for its submission does not arise until the Arbitrators have made\ntheir decision upon the first five questions;\" and therefore the Arbitrators must make their decision without the benefit of such evidence.\nThey protested that it ought not to be put into the original Case; that\nthe action of the United States Government in incorporating such evidence in their original Case was irregular, improper, and not allowed\nby the Treaty. They reserve the right to move this Tribunal to strike\nit out. They have committed themselves squarely to it; and yet what\nI have the honor now to say is, that by their conduct they have refuted\ntheir own interpretation, and in addition to that, bearing in mind what\nwas communicated to me by Mr. Arbitrator Harlan, it is expressly said\nby them that the facts of seal life are relevant to the question.\nI may also say that in their Counter Case, dealing with the facts of\nseal life, and arguing the question of property, they use over and over\nagain'the report of their Commissioners, which they refused at first to\nincorporate into their original Case, but which they afterwards, as the\nArbitrators will remember, furnished to us at our request upon the understanding that it should be treateel as a part of it.\nThe President.\u2014Had 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?\nMr. Carter.\u2014They 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\nrely as to the questions respecting the nature and habits of seals, the\nquestion of property and the question of Eegulations.\nSir Charles Eussell.\u2014Oh no!\nThe President.\u2014Do you not think it was legal for them to use the\nevidence of the report in the Counter Case, since the Counter Case\ncame after that admission of the report?\nMr. Carter.\u2014Perfectly so.\nThe President.\u2014I mean do you object to that? That is what I\nenquire about.\nMr. Carter.\u2014Not at all. I am not disputing the propriety of that.\nIt was entirely proper. I only meant to say that their use of the original\nreport in their Counter Case while arguing the question of property\nshows that that original report is relevant to the question of property.\nIf relevant to the question of property, it ought to have been put into\ntheir original Case.\nIn their argument they follow the same method. On page 27 they\nhave a part two, and that is entitled \"Argument addressed to the fifth\nquestion for decision under article six of the Treaty of Arbitration,\nnamely: \"Has the United States any right of protection or property in\nthe fur-seals\". And they go on in that argument, and make the basis\nof it, their understanding of the nature of the habits of the seal. That\nargument goes through many pages.\nThis is all I have to say, and certainly it is not necessary that I should\nsay anything further, in order to show that the contention made in argument, made in diplomatic correspondence on the part of the British\nGovernment, that evidence touching the nature and habits of fur-seals\nis not relevant upon the question of property is not only\u2014begging the\npardon of my learned friends\u2014preposterous uDon its face, but has been\nrefuted by their own action in a great variety of forms.\nNow, why did they put evidence in relation to the nature and habits\nof seals into their Counter Case? Why did they put it there? They ARGUMENTS ON PRELIMINARY MOTIONS. 129\nprofess to say that it does not apply to the five questions stated, that\nit is relevant only to the question of regulations; that the consideration\nof the question of regulations is not yet in order, that it will not be in\norder until the arbitrators have made a decision adverse to the United\nStates\u2014that then, and then for the first time, will it be relevant; and\nyet, notwithstanding that view, they have crammed their Counter Case\nwith it to repletion. Why elid they do that? What is their own excuse\nfor that course so inconsistent with their own view? They said they\ndid it out of deference to the views of the United States. Out of deference to the United States! That is to say\u2014for such is the distinct\nimplication\u2014the United States desired it. That is the implication; that\nis the inference\u2014that the United States Government desired it.\n. What? The United States Government desire that the British Counsel\nshould put into their Counter Case what they had left out of their\noriginal Case, and what ought to have been put there? Why, no. The\nposition of the United States was that anything in reference to the\nnature and habits of seals which you have to submit is to be put into\nthe original Case. If you do not put it into the Case and at the time\nwhen that is submitted, you must never put it in. That is the position\nof the United States, was at the first, has always been, and is now; and\nyet they say that out of deference to the views of the United States\nthey contradicted their own theory and inserted it in the Counter Case!\nThe insertion of that matter in the Counter Case is the great thing\nto which we have objected. We object to that, and have objected afi\nalong, on the same grounds upon which we object to the reception of\nthe present supplementary report of the British Commissioners.\nNow then, let me approach the point now before this Tribunal.\nWhat is it? It is whether a certain document that has been placed\nbefore the Tribunal of Arbitration should be retained or should be\nreturned to those who sent it. That is the question before you. . Is\nthe submission of that paper defensible upon any possible view? On\nthe view entertained by the United States concerning the interpretation of the Treaty, of course it is not; and I am not going to repeat\nmy argument upon that point, but to assume that I have sufficiently\nestablished it. On our interpretation it is a wholly inadmissible proceeding to submit such a paper as that in the manner in which it was\nsubmitted. What is the character of the paper? I don't know. I\nhave never seen it, and I have no information about it; but I suppose\nI may say that it is to be presumed to have a bearing upon the merits\nof this controversy. If it has not any bearing upon the merits of this\ncontroversy, why of course it should not be received. It must be presumed to have a bearing upon the merits of this controversy. The\nvery fact that it is submitted shows that.\nWhat bearing may it have? It may contain either arguments or\nevidence, or, as they euphemistically style it, \" trustworthy information\". If it contains arguments alone, it is improperly submitted.\nLearned counsel are to argue the case of the British Government, not\nthese Commissioners. If it contains evidence bearing upon this controversy, then as I think I have succeeded in showing, it is wholly\ninadmissible. I have now to submit to the learned Arbitrators that it\nis inadmissible upon their view of the Treaty\u2014the view of the counsel\nof Great Britain.\nWhat 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,\nthey must admit that it is admissible and only admissible as a part of\nB s, pt xi 9\nJ 130 ARGUMENTS ON PRELIMINARY MOTIONS.\nthe original Case; but assuming for the purpose of argument, that it\nbears upon the question of regulations only, when, according to their\ntheory, is it admissible? It is admissible, according to their theory,\nin a certain contingency, and in a certain contingency only; and what\nis that? The decision by the board of Arbitrators adverse to the\nUnited States upon the question of exclusive jurisdiction. Has that\ndecision been made? Certainly not. Therefore, upon their theory it\nis not competent or admissible here. Let me ask whether it is admissible on the original theory of the British Government as modified by the\nlearned Counsel, who has so ably argued this question on their behalf.\nHow has he modified it? Why, he has said: \"Any decision; I don't\nmean a formal decision, I mean an intimation.\" Has that intimation\nbeen given? No more than the decision.\nThere is another aspect in which evidence might possibly be admissible, and that is, if the Arbitrators themselves after they come to the\nquestion of regulations, or when they are considering the questions of\nregulations suggest that further inquiries or further evidence is admissible, then it might come. Have they made any such suggestion ?\nMr. Foster.\u2014The provision is: \"They may require a written or a\nprinted statement, or argument, or oral argument by Counsel.\"\nMr. Carter.\u2014I will read it:\n\"And the Arbitrators may, if they desire further elucidation with\nregard to any point, require a written or printed statement or argument\nby Counsel upon it.\" I stand corrected.\nMr. Phelps.\u2014That is restricted to Counsel.\nMr. Carter.\u2014That is restricted to argument, and does not deal\nwith evidence. Therefore upon no possible interpretation, not even\ntheir own, is this supplementary Eeport admissible, and I submit very\nrespectfully to the learned Arbitrators that it should be promptly\nrejected and returned. That is the only just disposition which can be\nmade of that paper.\nI have concluded my argument in respect to that. I desire to make\none or two observations, not by way of argument upon this point,\nbecause I have concluded that, and I am not going to attempt to take\nit up again. My learned friend, Sir Charles Eussell, stated with some\nemphasis that while the United States contended that evidence in relation to the nature and habits of the seals relevant to the question of\nproperty 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\nof that character into our Counter Case contrary to our own views.\nHe referred in that connection, I believe, to the three reports of Capt.\nHooper and Capt. Coulson which deal with the condition of seal life in\n1892; anel to the reports of certain Treasury officers, two or three of\nthem, also having relation to matters in 1892,1 believe. I do not know\nthat he referred to anything else. That is all I remember.\nLet me say in reference to the pieces of evidence thus referred to\nthat they may in part be subject to the criticism which my learned\nfriend puts upon them. That is, that they so far relate to seal life as to\nbe germane to the main questions, and therefore properly the subjects\nof insertion in the original Case.\nSir Charles Eussell.\u2014I would like to interpose here, Sir, in order\nto 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.\nI was pointing to the fact that it was evidence which from the nature\nof the case we had no opportunity of in any way meeting or replying to. ARGUMENTS ON PRELIMINARY MOTIONS. 131\nI was pointing out that that was a necessary incident, almost indeed a\nnecessary incident, to the proceedings of a Tribunal constituted as\nthis is; but I was making no complaint of its appearing there, in anv\nsense. J\nThe President.\u2014We perfectly understood you.\nMr. Carter.\u2014No complaint; but still my learned friend insisted\nwith great emphasis that the course thus pursued by the United States\nwas not justified by their interpretation of the Treaty.\nSir Charles Eussell.\u2014Oh! no.\nMr. Carter.\u2014I understood him to say that. If I am mistaken\nabout that, then I will pass by the observation.\nSir Charles Eussell.\u2014It was addressed solely to the argument\nof my learned friend, Mr. Phelps, who was complaining of the injustice\nof certain evidence being put forward which the other side had not had\nan opportunity of answering. My reply was that that was a necessary\nincident of this case, that they had included in their Counter Case (and\nI was not complaining of it or making objection to it,) matter which we\nhad no opportunity to answer.\nMr. Carter.\u2014Well, I must have a word to say in regard to the\nobservation just made, that the presentation of evidence without giving\nthe other party an opportunity to reply to it is a necessary incident of\nthis 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\ninsiguificant extent, it is a necessary incident of this controversy; but\nin regard to the main and principal features of this controversy, it is\nnot, I may be permitted to say.\nIn reference to all the main questions in dispute here, if the parties\nhad fully, fairly, faithfully presented the allegations upon which they\nrelied, as the Treaty designed that they should, in their original Cases,\nthere would have been full complete and substantial opportunity, by\neach party to reply. Of course, there is no opportunity here to reply\nto replying evidence. The course of pleading must stop somewhere, and.\naccording to the provisions of this Treaty it stops with the Counter\nCase. There is no opportunity to reply to that, but the provision of the\nTreaty supposed that there would be no new matter inserted in the\nCounter Cases; if the provisions of the Treaty were faithfully followed,\nthere would be no new matter inserted in the Counter Cases, and no\noccasion, therefore, to reply.\nI 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\nproperly desire to add further explanation. That is indeed a necessary\n\u2022incident, but it is too small and too insignificant for notice or attention,\nin view of the fact that the great purpose of reply, the great purpose of\ngiving 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\nof an opportunity to further reply is not in any material or substantial\nsense a necessary incident of the manner in which the controversy is\nprovided to be conducted by the terms of the Treaty itself.\nI wish to say in reference to these further reports of ours, which are\nnot complained of: we inserted them in the Counter Case ? Why ? We\ncould not have inserted them in the original Case. They were investigations in respect to matters which arose after the original Case was\nprepared, or while it was being prepared, and therefore could not be\ninserted in it. We therefore did not withhold anything. The matter\ndid not exist until after the preparation of the original Case, and there- 132 ARGUMENTS ON PRELIMINARY MOTIONS.\nfore could not have been introduced into it. Next, we. suppose that\nmuch of the matter contained is germane and proper to be inserted in\nthe Counter Case by way of reply to what was contained in the Eeport\nof the Commissioners of Great Britain, which was, by agreement, made\npart of the original Case of Great Britain, and therefore perfectly regular in that point of view. So far as there may be anything beyond\nthat, if there is any objection to it, if it is supposed by the other side\nthat this is matter which ought to have been inserted in the original\nCase, and which, had it been inserted in the original Case they should\nhave had an opportunity to reply to\u2014we do not ask to have it retained;\nand upon their objection, if they can point to any matter distinctly of\nthat description we are willing to have it stricken out, provided, of\ncourse, the same rule is applied to them in respect to any new matter\nsubmitted by them in their Counter Case.\nMr. Foster.\u2014The matters relate to the conditions of seal life in 1892.\nMr. Carter.\u2014Of course, that is what I have said, that it had reference to facts occurring while the Case was under preparation, that is\nseal life in 1892.\nThe President.\u2014You practically make no motion for retiring part\nof the evidence brought forward in the British Counter Case.\nMr. Carter.\u2014We do not make any such motion. Yesterday I\nendeavored to explain to the learned arbitrators the grounds upon which\nwe thought it inexpedient to do so. We could make that motion, and as\nwe conceive, it should be granted and would be granted. But where\nshould we be left? Why, the practical failure of the arbitration almost\nmight be involved, or we be called upon to go into a contest here with\nour adversaries crippled. That is not the kind of controversy in which\nlawyers like to engage, even where the crippling comes in consequence\nof their own fault ana not in consequence of any fault of ours. It is not\na victory won over an adversary who is in that condition that we desire.\nIt 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\nproper to be looked into for the purposes of a settlement. That is what\nwe desire; what we regret is, that those facts were not placed before\nthe Tribunal at the time and in the manner in which it was contemplated by the provisions of the Treaty they should have been placed.\nThat is our grievance\u2014as my learned friend has observed that we seem\nto be in search of a grievance. I confess it is a grievance. Must a\nparty when he it stricken with a pretty severe blow rest quiet under it\nand say nothing about it, or else be stigmatized as searching for a .\ngrievance? We maybe subject to that observation, that criticism; but\nit is in our judgment a circumstance far too important to be omitted\nfrom deliberate consideration in the course of the discussions in this-\ncase.\nThere is one other matter which has been referred to and assumptions made in reference to it several times during the course of the\nargument, and which, although it is not in any sense material to the\npresent discussion, I ought perhaps to say a single word in regard to.\nCalling the attention of the arbitrators again to the provisions of\narticle 6, it appears that there are four questions which purport upon\ntheir face to relate in some manner to an asserted power or jurisdiction\nof the United States in Behring Sea. There are four of them of that\ncharacter. The fifth is:\nHas the United States any right, and if so what right, of protection or property\nin the fur-seals frequenting the islauds of the United States in Behring sea when\nsuch seals are found outside the ordinary three mile limit. ARGUMENTS ON PRELIMINARY MOTIONS. 133\nThat fifth question does not purport on its face to relate to or involve\nany matter of exclusive jurisdiction. It differs from the other question\nin that regard. It embraces certainly the property question. Whether\nit embraces anything else, or not, is perhaps not entirely clear.\nNow let me call your attention to Article VII:\nIf the determination of the foregoing questions as to the exclusive jurisdiction of\nthe United States shall leave the subject in such position that the concurrence of\nGreat Britain is necessary.\nI The foregoing questions as to the exclusive jurisdiction.\"\nNow, how is that to be interpreted ? Is it confined to those four first\nquestions which purport on their face to relate to exclusive jurisdiction,\nor does it include the whole? That is the question, does it include the\nwhole?\nA plausible argument could be made in support of either of those\npositions. 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\ninclude the fifth question, that not being a question relating to the exclusive jurisdiction of the United States; and I think upon the other hand\nit may be claimed with equal, perhaps greater plausibility, that Article\nVII contemplates all five of those questions as relating, in a greater or\nless degree, to the exclusive jurisdiction of the United States.\nYou will observe that it says: \"If the determination of the foregoing\nquestions as to the exclusive jurisdiction of the United States.\" That\nimplies, at least, that they all relate to the exclusive jurisdiction of the\nUnited States.\nThe President.\u2014You do not mean to say \"jurisdiction\" is the\nsame as \"rights of sovereignty\"?\nMr. Carter.\u2014Well, now, what \"jurisdiction\" means, who knows?\nWe shall have something to say about that by and by. That is a word\nof very ambiguous import; I shall talk more about this question when\nwe 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\ntwo views may be taken; and what favors the second view, in my\njudgment, is this consideration: If it were held that the United States\nhad a perfect property in the fur-seal, even while it was at sea, the\nquestion may be made, indeed it has been made by Great Britain,\nwhether the United States has the right to enforce the protection of that\nproperty on the high seas by the assertion of acts of power; in other\nwords, whether it has the right to seize and carry in for condemnation\na vessel that is engaged in an invasion of that right? The position is\ntaken by Great Britain in this controversy that, even if the right of\nproperty were fully established, the power thus to act in the way of\nseizing a vessel does not exist; that is to say, that even if the right of\nproperty exists you have no jurisdiction to do that particular thing, the.\nseizure of a vessel on the high seas by way of protecting that property.\nTherefore this question: \"Has the United States any right, and if so\nwhat right, of protection or property in the fur-seals frequenting the\nislands of the United States in Behring sea when such seals are found\noutside the ordinary three-mile limit,\" may properly be regarded as a\nquestion of jurisdiction, in the vague sense in which \"jurisdiction\" is\nused throughout this Treaty.\nBoth those interpretations may be, with a good deal of reason, entertained. I have now to suggest, however, that it makes not the slightest\ndifference which view is taken upon that point, for the same result will\nbe arrived at in either case. \u2022 Suppose we take the first view, that it is 134 ARGUMENTS ON PRELIMINARY MOTIONS.\nconfined to the four first questions and does not include the question of\nproperty.\n\"If the determination of the foregoing questions as to the exclusive\njurisdiction of the United States shall leave the subject in such position\nthat the concurrence of Great Britain is necessary to the establishment\nof Eegulations for the proper protection and preservation of the fur-seal\nin or habitually resorting to the Behring sea, the Arbitrators shall then\ndetermine what concurrent Eegulations outside the jurisdictional limits\nof the respective governments are necessary\", etc. If we limit that to\nthe four first questions what would be the grounds of proceeding?\nThe President.\u2014Do you not think that we might reserve these very\ninteresting observations for our next sitting?\nMr. Carter.\u2014After the recess?\nThe President.\u2014Yes, after the recess. It would afford you occasion\nfor a rest, and I dare say you require a little rest yourself.\n(The Tribunal thereupon took a recess for a short time.)\nMr. Carter.\u2014I was speaking, when the Tribunal took its recess, upon\na matter about which there has been some debate, but which is not vital\nto the present motion at all, respecting the interpretation which is to be\nplaced upon the words in the seventh Article of the Treaty, namely:\n\"The foregoing questions as to the exclusive jurisdiction of the United\nStates.\" I had said that that was susceptible of two interpretations,\none of which would limit these foregoing questions to the first four\nstated in Article VI and did not include the property question, and the\nother interpretation would include all of them, the property question as\nwell. I also observed that it did not seem to me that anything of practical importance depended upon which of those views should be taken\nto be the true one, for the result as it seemed to me, would in either\ncase be the same. It is that which I wish very briefly to show to the\nTribunal\u2014that the result would be the same in either case. After the\narguments have been finally concluded, it will be the duty of the Arbitrators to proceed according to the first provision of Article VI: \"Iu\ndeciding the matters submitted to the Arbitrators, it is agreed that the\nfollowing five points shall be submitted to them in order that their\naward shall embrace a distinct decision upon each of said five points.\"\nTherefore, their first task will be to make their decision on those five\npoints. Let us assume it to have been made, and that the decision in\nrespect to the 5th point is that the United States has the full property\ninterest 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\nArbitrators have complied with their duty, and decided the first five\nquestions. It will' then become necessary for them to consieler whether\nthe subject is left \"in such position that the concurrence of Great Britain\nis necessary to the establishment of Eegulations for the proper protection and preservation of the fur-seal in, or habitually resorting to the\nBehring Sea.\" Suppose they put upon that clause the narrower interpretation, namely that it includes only the first four questions, and ask\nwhether the subject is then left \"in such position that the concurrence\nof Great Britain is necessary\". Let me assume that the decision is\nadverse to the United States on the four points, and on the fifth point\nis fully and completely in favor of the United States. Then the question with the Arbitrators is: Does the decision of the Tribunal on the\nfirst four questions leave the subject \"in such position that the concurrence of Great Britain is necessary to the establishment of Eegulations\nfor the preservation of the fur-seal\". Well, of course, the first four\nquestions having been decided adversely to the United States, so far, ARGUMENTS ON PRELIMINARY MOTIONS.\nat least, the subject is left in a\nof Great Britain; but the deci\n5th question is in favor of the '\nerty interest. Does that altei\ndecision upon the subject? Is\nthat the concurrence of Great\non the opinion of the Arbitn\nStates has to protect an admitt\nclaims, that it does have the full right of protection, it may then think\nthat no assistance is necessary for the preservation of fur-seals, by\nregulations, and that the concurrence of Great Britain is not necessary,\nbut 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.\nSuppose, however, they happen to be of the view, which has been\ntaken by Great Britain in the course of this controversy at some times\u2014\nwhether it will be still persisted in argument, I cannot say\u2014namely,\nthough the United States may have a property interest in the fur-seals,\nit cannot seize a vessel outside the ordinary three-mile limit that is\nengaged 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.\nLet me suppose the contrary view, and that the foregoing question\nrelating to the exclusive jurisdiction of the United States included all\nthese five questions, the property question, as well, what will be the\ncourse of procedure then? The Arbitrators will make a decision on all\nthese 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\nBritain is necessary for the establishment of regulations to preserve\nthe fur seals?\" And let it be supposed, again, that the decision is\nadverse to the United States on the first four questions and in favour\nof the United States on the fifth. Well, they would go through with\nprecisely the same considerations which I described them as being\nobliged to go through with on the supposition that these foregoing\nquestions, as to jurisdiction, relate only to the first four questions and\ndo not include the property question. It would be the same thing in\nany event, and if we suppose that the decision of the Arbitrators should\nbe against the United States on the question of jurisdiction, then of\ncourse it would be their view that the concurrence of Great Britain\nwould be necessary as to regulations to preserve the fur-seal. It,\ntherefore, seems to me, so far as I can perceive, that no practical\nimportance of any considerable moment rests upon the question,\nwhether 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.\nThat is the explanation I desire to make.\u2014With this I should stop,\nand 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\nour motion, but I reckoned a little without my host. There is a single\nposition taken by my learned friend, Sir Charles Eussell, to which I\nhave 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.\nabout it. That position is, that the submission of the evidence to the\nArbitrators on the question of regulations at least is admissible at any\ntime down to the final decision. It is indeed necessary for him to take\nthat position. For as I have already shown, there is no other ground\nupon which this paper is admissible, and it being necessary for him to\ntake 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\ntrue, the paper was admissible on the day when it was delivered. It\nhas been admissible everyday since then, and will be admissible down\nto the last day on which we shall be engaged on the argument of this\nquestion. If it was admissible the day before it was actually delivered,\nit was admissible every day before that up to the time when the Counter Case was delivered and might have been incorporated into the\nCounter Case as an appropriate part of that document. In other words,\nthe position of the learned Counsel is, that this Supplementary Eeport\nof the British Commissioners, and any evidence like it directed to the\nsame point, is admissible at all times at the pleasure of Her Majesty's\nGovernment with this single exception, that it is not admissible as\npart of the original Case and could not have been put in there. That\nground they still assert. In other words, his position is, that the\nBritish Government is able to lay before the Arbitrators on the question of regulations such evidence as they please at any time and in any\nmanner, provided that they do not offer it at a time and in a manner\nwhen the United States can reply to it. That is all the observation\nthat I have to make to this position.\nWith these observations, and greatly regretting the inordinate\nlength, for which I may be perhaps in some way responsible, to which\nthis argument has been protracted, and with many thanks to the Arbitrators for the consideration they have extended to me, I take my leave\nof this motion.\nSir Charles Eussell.\u2014With your permission, Sir, I would claim\nleave 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\ncertain matters that have been introduced by my learned friend, Mr.\nCarter, and not previously advanced in argument, which I have uot had\nthe opportunity of dealing with. I mean the matter relating to the\ndiplomatic correspondence which took place in 1890 and the argument\nsought to be based on that correspondence. I claim respectfully the\nconcession from the Tribunal, the opportunity in a very few words of\nshowing that my learned friend has entirely misconceived the purport\nof that correspondence.\nMr. Carter.\u2014I must object to this.\nSir Charles Eussell.\u2014Well, Sir, perhaps I ought to have said\nthis in addition, that if the Tribunal decide that that diplomatic correspondence is relevant to the construction of the Treaty which is the\nquestion before the Court, then I claim the right to answer that branch\nof the discussion or argument; but, of course, if, as I shall contend, it\nis not relevant, and if the Tribunal should have that view, I do not\nseek the opportunity of replying. Should it, however, enter into the\nminds of any of the Tribunal that it is relevant to the construction of\nthe Treaty, then I claim to point out the fallacy and the mistake under\nwhich my learned friend labours.\nThe President.\u2014The diplomatic correspondence has been communicated to us as part of the information that it is necessary for us to\ntake into consideration, and, consequently, we cannot help considering\nit as relevant, in a certain measure, to the Treaty under which our\npowers are defined. ARGUMENTS ON PRELIMINARY MOTIONS. 137\nMr. Justice Harlan.\u2014That may or may not turn out to be the case.\nWe may look into it, and may come to the conclusion that it does or\ndoes not interpret the Treaty. Whether that is our conclusion, we\ncannot know until we confer among ourselves.\nSir Charles Eussell.\u2014Then, if that be so, I should claim to make\nan observation limited to that part of the discussion.\nThe President.\u2014I think the observation of my learned colleague\ngoes to giving you leave to reply on the special points you hinted at;\nbut we must preserve also the right of the opposite party to reply to\nyour observations within the same limits, of course,\u2014I mean, within\nthe same limits of time and of substance.\nSir Charles Eussell.\u2014I will confine myself to five minutes, if my\nlearned friend, Mr. Phelps, will come under the same obligation.\nThe President.\u2014I do not imagine for a moment that you intend\narguing the case over again; in fact, you specially said that you did\nnot want to do so and that your observations will be necessarily limited in their nature and, consequently, necessarily limited in their time\nwhich you will require to explain them. And, therefore, I would ask\nthe adverse party to keep within the same limits,\u2014within analogous\nlimits of substance and analogous limits of time if possible.\nMr. Phelps.\u2014I was about to observe, Mr. President, unless the\npoint is decided, that the whole matter of the diplomatic correspondence of 1890 as affecting this Treaty, was gone into in the opening.\nThe report of the opening argument which lies before you shows that\nit was fully gone into. The correspondence was not perhaps read so\nfully as it might have been, and I apologise for not having read it; but\nI stated the substance of it, and the point was made very fully, whether,\nclearly or not, that the meaning of the word \"contingency\" as it\noccurs in this Treaty was -to be found by referring to the previous\nnegotiations.\nSir Charles Eussell.\u2014With great deference, this is argument.\n. Mr. Phelps.\u2014No, I only want to state this, that the point was gone\ninto fully in the opening, and Mr. Carter, of course, went over the same\nground in reply to the views of the other side. I suppose we are entitled to the opening and the close; I do not wish to be captious certainly, but I was about to submit that the argument ought to be\nregarded as completed. If the Tribunal thinks otherwise, then I shall\nclaim the right to reply to Sir Charles.\nThe President.\u2014Yes. I do not think that we can preclude the\nEnglish Counsel from making fresh observations, if they think fit, on\nwhat they consider is a new matter. Sir Charles, I think that was the\npurport of your demand?\nSir Charles Eussell.\u2014Entirely, Sir. I do not propose to refer to\nanything except what is strictly and properly to be described as new\nmatter. I will observe the limits of time, and will undertake to conclude in five minutes, if not less.\nThe President.\u2014We have never found, as yet, that yon speak too\nlong; and I hope you will not have any impression of that sort.\nSenator Morgan.\u2014Is it understood that Mr. Phelps is to be limited\nto five minutes?\nLord Hannen.\u2014No; it is only a promise, of course.\nThe President.\u2014We shouldbe the first victims of anything of that\nsort; not only from being deprived of the pleasure that we have from\nhearing Counsel, but also of their efforts which enlighten our minds in\nthis matter. 138 ARGUMENTS ON PRELIMINARY MOTIONS.\nSir Charles Eussell.\u2014My friend shall find no excuse for a protracted reply to me, for I will only make one observation. You are\nasked to construe the Treaty, under which you sit, of the 29th February,\n1892, and you are asked to construe the terms of that Treaty of 1892\nby reference to diplomatic correspondence in 1890, and the suggestion\nbased on the diplomatic correspondence of 1890 is that there was then\na contemplation of a submission of questions to Commissioners, and a\ncontemplation that if the Eeport of those Commissioners was made in\na certain direction there would be an acceptance of the Eeport of those\nCommissioners, and no need for Arbitration at all. My answer to that\nis two-fold: first, that the negotiations referred to in the communication\nof Sir Julian Pauncefote hacl relation solely to the question of Eegulations, and had no relation to the question of damage claimed by Great\nBritain, for the invasion of the rights of its national ships; next, that\nthat attempted Convention was one as to which it was supposed Eussia\nmight be induced to become a party, and Eussia had no concern with\nthe question in dispute between the United States and Great Britain at\nall, in relation to questions of right and of damage arising out of the\nseizure of the British ships; and, lastly and conclusively, at the same\ntime, overlapping the same dates, there is, if you read the correspondence, evidence that the parties were then discussing the question of\nArbitration which should deal with the question of right, and, incidental\nto the question of right, with the claims of the British Government to\ncompensation in damages. Now Sir, I have been onlv a minute and a\nhalf.\nMr. Phelps.\u2014It does not appear to me, Sir, that my learned friend\nquite comprehends, with all his acuteness of comprehension, the use\nthat we make of this previous correspondence. It has nothing whatever to do with the question of damages between these Governments.\nIt has nothing whatever to do with the concurrence of Eussia. We\nresort to it only to explain an ambiguity in one of the terms of this\nTreaty, that is to say, to find out what this word \" Contingency \" refers\nto. Does it refer to the contingency that this Tribunal shall decide\nthe first five questions in favor of Great Britain, or does it refer to the\nContingency that formerly existed whether the Tribunal would ever\nsit at all?\nNow it is urged in support of the admissibility of this evidence that\nthe Treaty provides that the evidence is only to be submitted in the\ncontingency of your decision in favour of Great Britain upon the other\npoints. We say that when you go back to the former negotiations and\ncorrespondence you will see how that term 1 Contingency\" got into this\nTreaty, and therefore that it has no such meaning\u2014that it was imported\ninto the Treaty from language employed when there was a contingency,\nas originally contemplated, whether there should be any Arbitration at\nall. If when the Treaty was first proposed these Commissioners had\nagreed upon a satisfactory code of Regulations which the Governments\ncould have adopted, then there never would have been any Arbitration\nbut it was contemplated that if they did not agree, or if agreeing the\ntwo Governments should not agree to adopt their conclusion, then there\nshould be an Arbitration. There was a then existing Contingency, and \u2022\nthat is the Contingency that has found, its way'into this Treaty, and has\ncaused the word to be used in this connection. One construction, if\nadopted, would make the Treaty provide for the submission of evidence\non all points in the Cases and Counter Cases, so that it could be answered\non the other side. The construction for which my learned friend contends, results in the contrary, that is to say that evidence may be\nadmitted that we cannot reply to, and that is the subject of this debate. ARGUMENTS ON PRELIMINARY MOTIONS* 139\nThe PRESEOENT^-Mr. Phelps, is it within your knowledge (as Sir\nCharles Eussell has just alluded to it) that it was in the view of both\nGovernments to have at any rate an Arbitration upon the legal points\nif not upon the Eegulations?\nMr. Phelps.\u2014I think not.\nThe President.\u2014That is a matter of fact upon which I ask you for\nMr. Phelps.\u20141 think no Arbitration was originally contemplated\non any of these questions of right for this obvious reason. The negotiations in 1887 and 1888 had reference exclusively to the protection of\nthe seal. Only when these failed were the claims of right brought\nforward. If these had not failed it could have been of no possible\nimportance to the two nations to discuss these claims or to have them\ndecided.\nSir Charles Eussell.\u2014How is the question of damage to be\nascertained?\nMr. Phelps.\u2014I will allude to that in a moment. An Arbitration is\nas entirely unimportant, unless it became necessary for the protection of\nthe seal. If the two Governments had come together, and had adopted\na system of Eegulations which both regarded as satisfactory and sufficient, then it would be idle farther to debate whether the United States\nGovernment had a right of property in the seals which it would become\nunnecessary to enforce. And it would be idle to discuss whether they\nhad derived from Eussia certain special jurisdiction to these water\nrights because they did not need them for any other purpose. And as\nto any question of damages which had then arisen, if the main subject\nof the controversy, the protection of the seals, had been disposed of, it\nis not conceivable that the comparatively small amount in dispute would\nhave given the Government any concern. They would have agreed\nabout that in a moment, if they had agreed about the rest. As you\nwill perceive, and as you will perceive still more clearly when we come\nto argue the merits of the case, this discussion in 1887 began by a proposal on the part of the United States.\nSir Charles Eussell.\u2014This is rather going beyond the point I\nthink.\nMr. Phelps.\u2014I am answering only the President's question about a\nproposal for a convention that would provide for the protection of the\nSeal; it comprehended nothing else, and, as we shall contend, that\nwas acceded to on the part of Great Britain, and Eegulations were\nprepared and provisionally agreed upon, and then the objection of\nCanada was interposed and that fell to the ground. In the whole\ncourse of that you will see that no question of damages was raised.\nSir Charles Eussell.\u2014Oh! really, Mr. Phelps; I must distinctly\ndissent from that.\nMr. Phelps.\u2014I am speaking of what I personally know.\nSir Charles Eussell.\u2014Then, Mr. President, I challenge my\nlearned friend, Mr Phelps, to refer to any document in which Great\nBritain ever receded from the position of claiming compensation for\nwhat she alleged to be illegal seizures, or any paper in which the\nUnited States said they were, if Eegulations were agreed to, ready to\npay compensation in respect of those illegal seizures.\nThe President.\u2014That is not quite the purport of what Mr. Phelps\nsaid. \\ '' . ,\nMr. Phelps.\u2014No, Sir, it is not. I said that when, under the instructions of my Government, I introduced this subject in 1887, the sole\nproposition made on the part of the United States was for a Conven- 140\nARGUMENTS ON PRELIMINARY MOTIONS.\ntion that should save these animals from extermination; and, as we\nclaim to have proved in our Case, that proposition was at once acceded\nto by Great Britain,\u2014a code or a proposed code from the United States\nwas invited, and it was furnished and was provisionally agreed uportj\nand only the objections of Canada prevented its being carried into\neffect. And what I said was, not that Great Britain then receded from\nany claims for seizure,\u2014hardly any, if any, had then taken place.\nSir Charles Eussell.\u2014Oh! yes.\nMr. Phelps.\u2014Well, there may have been, and I will not say there\nwas not.\nSir Charles Eussell.\u20148 or 9.\nMr. Phelps.\u2014What I was saying was not that Great Britain receded\nfrom any such claim or that the United States acceded to it; but that\nnothing was said in regard to it on either side between the Governments in the whole course of this negotiation. When the Arbitration\ncame to be agreed upon, then the question of damages was imported\ninto the Case. All that is foreign to the point now before us, which is\nwhat is the meaning of the word \"Contingency\" as affecting the time\nwhen the evidence is to be taken, the time when the question is to be\nheard, and on what evidence it is to be heard.\nThe President.\u2014Sir Charles, I think it is not proper to argue just\nnow upon the Eegulations themselves, or as to either the origin or the\npurport of the first draft; but I will merely ask you to be so kind as to\nstate on what authority is founded the assertion that you just made\nthat the Governments had contemplated the institution for an Arbitration on the legal points as separate from the Eegulations ?\nSir Charles Eussell.\u2014Certainly, Sir; I will give you the dates.\nThe draft of the proposed Convention is the 29th of April, 1890. I\nrefer you to page 461 of the third volume of the Appendix to the\nBritish Case.\nThe President.\u2014Our documents have not the same paging as yours\nhave.\nSir Charles Eussell.\u2014I think the first part is exactly the same.\nThis, you see, Sir, is within less than a fortnight of the date.\nThe President.\u2014Which date?\nSir Charles Eussell.\u2014The 11th of May, 1890. You will find it is\nnumber 334, Sir Julian Pauncefote to the Marquis of Salisbury\u2014\"As\nto compensation for damages referred to in your Lordship's telegram\nof the 9th instant,\"\u2014that brings it still closer to the 30th,\u2014\"I have\nprepared, after discussion with Mr. Tupper, a draft Arbitration Agreement on the basis of your Lordship's instructions?\" The last line of\nthat document also I refer to. It is, \"Proposal for Arbitrators and\nUmpire*will be agreed to by Mr. Blaine.\"\nThe President.\u2014This draft Arbitration Agreement has not been\nproduced?\nSir Charles Eussell.\u2014No, Sir.\nThe President.\u2014We have not got it?\nSir Charles Eussell.\u2014No, Sir; but what I am at present, of\ncourse, referring to is to shew that my friend's position, that the proposed Eegulations, to which it was hoped Eussia would be a party,\ndid not displace the claim for damages and did not displace the claims\nof right upon which the right to damages depended, and that there\nwas, contemporaneously with the consideration of these Eegulations,\nthat claim for damages and a proposal to arbitrate in reference to it.\nThat is shewn by the telegram of the 11th of May, which I have read.\nIf you will then, Sir, go to the document of the 22nd of May, a long ARGUMENTS ON PRELIMINARY MOTIONS. 141\nletter on page 462, you will find a long despatch from Lord Salisbury\nto Sir Julian Pauncefote arguing out the question of right and the\nillegality of the seizure of the British vessels. That; Sir, is the 22nd\nof May, 1890. Will you then, Sir, go on to page 481?\nThe President.\u2014Is there any mention of Arbitration in this\ndespatch.\nSir Charles Eussell.\u2014In this particular letter\u2014No. It was combating the argument of Mr. Blaine affirming that the United States\nwere j ustified m doing what they had done. If you will then, Sir, go on\nto page 481 of the same volume.\nThe President.\u2014That may be called argument on the legal point.\nSir Charles Eussell.\u2014Yes, on the legal points strictly, Sir. On\npage 481, at the top, you will see the document No. 360. Now, Sir, at\nthis time (I have not troubled you with the intermediate correspondence) they were getting closer upon the point of Arbitration agreement\nas to right, and as to damages, and they were also getting closer to\nArbitration agreement upon the point of Eegulations; and the question\narose what was to be done, as the sealing season was beginning about\nJune\u2014what was to be done to prevent injury to the sealing (so called)\n\"industry\" at that time, and in answer to a demand from the United\nStates that something should be done in the interim, Lord Salisbury\nwas requested, having stated that he had no legal authority, and the\nEnglish Executive no legal authority except under statute law, to prohibit acts by their nationals,\u2014he was requested to give some public\nnotification which might have, although not legally binding, some\noperation on the action, and control the action, of Canadian sealers.\nAccordingly he telegraphs to Sir Julian Pauncefote on the 12th of\nJune:\u2014\" Eeferring to my previous telegram of today's date, if we could\ncome to terms on this proposal he would suggest some such kind of\nproclamation as the following:\u2014Whereas the United States and Her\nMajesty's Government have agreed to refer to Arbitration the legality\nof the United States in making certain captures of British vessels in\nthe Behring Sea, and whereas the United States have engaged if the\naward should be adverse to them to pay compensation not only for that\ninterference, but for any loss arising from abstention from sealing consequent on this Proclamation, captains are hereby requested not to seal\nin Behring Sea during the present season.\"\nMr. Phelps.\u2014Was that the season of 1890 or of 1891?\nSir Charles Eussell.\u20141890. On the 3rd of June Sir Julian\nPauncefote writes this. It is the next document.\n\"I have the honor to inform your Lordship that since the receipt of\nMr. Blaine's note of the 29th ultimo, informing me of the rejection of\nthe draft Convention by his Government\"\u2014that is to say the Convention for Eegulations put forward on the 29th April\u2014\"I have been in\nconstant communication with him with view of coming to some possible\nsettlement of the Behring Sea question. On the 30th ultimo Mr. Blaine\ninformed me that he was to have an interview with the President, the\nresult of which he promised to communicate to me as soon as possible.\nI accordingly received a note from him last night, a copy of which is\nenclosed herewith, in which he states that the President is of opinion\nthat an arbitration could not be concluded in time for this season, but\nhe is anxious to know whether Lord Salisbury, in order to promote a\nfriendly solution of the question, will make for a single season the\nEegulation which in 1888 he offered to make permanent. Your Lordship will observe that the above proposal is identical with that contained at the conclusion of Mr. Blaine's note of the 29th ultimo. In 142 ARGUMENTS ON PRELIMINARY MOTIONS.\nview of the receipt of your Lordship's telegram of the 31st ultimo, and\nin order to save time, I at once wrote a note, a copy of which is also\ninclosed, to Mr. Blaine in reply, in which I informed him that Her\nMajesty's Government were not prepared to agree to such a Eegulation\nas was suggested by Mr. Blaine.\"\nNow, Sir, I go on to the 4th June 1890. It is on page 484\u2014that is a\nlong communication from Mr. Blaine arguing on the question of Arbitration or no Arbitration\u2014it begins at page 484 but it ends at page\n486\u2014where the question which I am putting forward is referred to, and\nalso urging the need for some present Eegulation which should be\noperative then and there as a temporary expedient, and the communication concludes on page 486: \"The President does not conceal his\ndisappointment that, even for the sake of securing an impartial arbitration of the question at issue, Her Majesty's Government is not willing to suspend for a single season the practice which Lord Salisbury\ndescribed in 1888 as the wanton destruction\" and so forth.\nFrom that date there is a complete and absolute disappearance of\nthe question of Eegulations pure and simple, or of a Convention with\nreference to regulations pure and simple; and it becomes, from that\npoint forward, until the 29th of February 1892, a discussion upon the\nquestion of the Treaty which should embrace both Eegulations, and\nthe decision of questions of right and damage consequent upon questions of right. I can go on with a multitude of documents to make\ngood this position.\nMr. Carter.\u2014Let me inform the learned Counsel that it will involve\na reply by us.\nSir Charles Eussell.\u2014I beg your pardon. I am simply answering\nthe question of the President.\nThe President.\u2014Of course, Mr. Carter, your right to reply is\nreserved.\nSir Charles Eussell.\u2014I am simply answering the question put to\nme by the President. I have not interpolated (with one exception for\nthe sake of brevity) any remarks. The 7th June document is at page\n511 of the same book.\nMr. Phelps.\u2014There is no dispute at all that at that stage, the whole\nsubject was discussed.\nSir Charles Eussell.\u2014Very well.\nMr. Phelps.\u2014All the correspondence shews that. It is printed in\nboth Cases and on both sides.\nSir Charles Eussell.\u2014I do not know, Sir, whether you or the other\nmembers have gathered my friend's admission which I am grateful for.\nMr. Phelps.\u2014I do not think you quite understood me, Sir Charles,\nif you will allow me. I do not wish to interrupt you, but I may perhaps set you right upon this. I do not at all question, what all the\ncorrespondence on both sides for a considerable period prior to the\nexecution of this particular Treaty shows,\u2014that after the Governments\nfound that Eegulations could not be agreed on, then the questions of\nright were introduced and began to be discussed, the United States\nclaiming rights which Great Britain denied. And that then Great\nBritain brought forward likewise the claim for damages the Government\nthought they were entitled to if these claims of right failed. I do not\ndeny that at all. All that I set out to say was, and all the importance\nthat I attach to it at this stage is, that in the beginning of this controversy, there was nothing at issue excepting the adoption of Eegulations that would preserve the seals,\u2014nothing more. There were some\nseizures in 1886; but the amount each now claimed is so small, that ARGUMENTS ON PRELIMINARY MOTIONS. 143\nboth parties have expended more already in this Arbitration than it all\ncomes to, and I do not conceive that an Arbitration ever would have\nbeen resorted to between the Governments for so small a subject as\nthat. That is all I meant to say. I beg pardon for interrupting von.\nSir Charles.\nSir Charles Eussell.\u2014Not at all. Allow me to point out what the\nstate of things was. Up to 1890 my learned friend seemed to hesitate\nand to doubt what seizures had been effected; and he treats it as an\ninconsiderable matter.\nMr. Phelps.\u2014Comparatively.\nSir Charles Eussell.\u2014I beg to observe that, in 1886, there had\nbeen a seizure of four British vessels, confiscation, imprisonment of\ntheir sailors and captains, or. some of them; in 1887, there had been\nseven seizures, making, with the first four, eleven. In 1889 there had\nbeen eight seizures, making nineteen. In 1890, there were further\nseizures; and yet my learned friend suggests two extraordinary propositions; first of all, that the British Government, denying from the\nbeginning to the end the claim of right of the United States, were\nyet willing, if Eegulations were agreed to, to submit to this action,\nwhich they claim to have been illegal action .and without warrant in\nlaw, without justifying the claim of their nationals to compensation in\ndamages.\nMr. Phelps.\u2014Oh! no.\nSir Charles Eussell.\u2014And next he commits the United States to\nthis extraordinary position, that they were willing to give up their assertions of right of jurisdiction, stated in the first four questions, and\ntheir assertion of .property in the seals, or in the individual seals, or in\nthe herd, or in the \"industry,\" provided Eegulations could have been\nconventionally agreed to.\nMr. Carter.\u2014To waive them,\u2014not to give them up.\nMr. Phelps.\u2014In 1887.\nSir Charles Eussell.\u2014I, therefore, have shewn that, in the very\nnext month (the correspondence overlapping the period in which there\nwas the question as to the Convention with a view to Eegulations to\nwhich Eussia was to be a party), there was contemporaneously with it\nthe negotiation going on between the United States and Great Britain\nalone as to the question of Arbitration upon damages, which necessarily\ninvolved questions of right, and there are questions of right expressly\nmentioned besides. But, further, I have shewn that, after the date I\nmentioned, the question of the Convention disappears from sight altogether, and that after that the discussion is solely conversant with matters leading up to and ending in the Treaty consummated on the 29th of\nFebruary, 1892. To suggest that you are to get the means of constru-_\ning the Treaty of 1892 from negotiations thus pending dealing with*\ndifferent subjects two years before, does I submit lead this Tribunal\nvery far afield indeed; and is the introduction of matter which cannot\nbe considered relevant or pertinent, even if it serve to help the purpose\n' for which my learned friends are using it. Lastly, and it is the concluding document, although I should invite the Tribunal to read all\nthese documents if they have any doubt about it,\u2014lastly, I will read\nthis document of June, 1890; and recollect my learned friend is relying\non what took place in 1890. This is what took place in June, 1890.\nIt is from Sir Julian Pauncefote to Mr. Blaine at page 510 of the\nvolume which you have before you in N\u00b0 378. \" I did not fail to transmit to the Marquis of Salisbury\" he says to Mr. Blaine: \" a copy of your\nnote of the ilth instant, \"in which, with reference to his Lordship's 144 ARGUMENTS ON PRELIMINARY MOTIONS.\nstatement, that British legislation would be necessary to enable Her\nMajesty's Government to exclude British vessels from any portion of\nthe high seas,' even for an hour,' you informed me, by desire of the\nPresident, that the United States Government would be satisfied if\nLord Salisbury would, by public Proclamation, simply request that\nvessels sailing under the British flag should abstain from entering the\nBehring Sea during the present season\". That leads up to the proclamation to which I have already referred. You will observe that passage\nis given in inverted commas. \"I have now the honour to inform you\nthat I have been instructed by Lord Salisbury to state to you, in reply,\nthat the President's request presents constitutional difficulties, which\nwould preclude Her Majesty's Government from acceding to it, except\nas part of a general scheme for the settlement of the Behring Sea\ncontroversy, and on certain conditions which would justify the assumption by Her Majesty's Government of the grave responsibility involved\nin the proposal. Those conditions are:\u20141. That the two Governments\nagree forthwith to refer to arbitration the question of the legality of\nthe action of the United States Government in seizing or otherwise\ninterfering with British vessels engaged in the Behring Sea, outside of\nterritorial waters, during the years 1886,1887, and 1889.\"\nMr. Phelps.\u2014What is the date?\nSir Charles Eussell.\u2014The 27th June 1890, two months after the\nConvention.\nSir Eichard Webster.\u2014It is page 223 of your Appendix.\nMr. Phelps.\u2014Yes, 1 merely wanted the date.\nSir Charles Eussell.\u2014\"2. That,pendingtheaward,allinterference\nwith British sealing vessels shall absolutely cease. 3. That the United\nStates Government, if the award should be adverse to them on the\nquestion of legal right, will compensate British subjects for the losses\nwhich they may sustain by reason of their compliance with the British\nProclamation. Such are the three conditions on which it is indispensable, in the view of Her Majesty's Government, that the issue of the\nproposed Proclamation should be based. As regards the compensation\nclaimed by Her Majesty's Government for the losses and injuries sustained by British subjects by reason of the action of the United States\nGovernment against British sealing vessels in the Behring Sea during\nthe years 1886,1887 and 1889,1 have already informed Lord Salisbury of\nyour assurance that the United States Government would not let that\nclaim stand in the way of an amicable adjustment of the controversy,\nand I trust that the reply which, by direction of Lord Salisbury, I have\nnow the honour to return to the President's enquiry, may facilitate the\nattainment of that object, for which we have so earnestly laboured\".\nThe Tribunal, therefore, sees that in the forefront of these points was\n\"the reference to Arbitration of the question of the legality of the action\nof the United States in seizing or otherwise interfering with British\nvessels, and next that the United States Government, should compensate\nBritish subjects even before any act of seizure was done, if they abstained, .\nin compliance with the request of the United States, from pursuing sealing in the year which is dealt with here.\nAnd, lastly, I must ask you, Sir, to turn over to the next numbering\nat page 55. It is very clumsily arranged, I am sorry to say.\nSir Eiohard Webster.\u2014It begins on page 37.\nSir Charles Eussell.\u2014It is a very long despatch of Mr. Blaine\nof the 17th December, 1890. It begins at page 37, but the passage that\nI read is on page 55.\nI begin at the second break from the top of page 55. \u2014 \" In his Annual\nMessage, sent to Congress on the 1st of the present month the Presi- ON PRELIMINARY MOTION!\nden\noffe\nGov\nk\u201esp\ntos\nernn\nu\nmiss\nsati\nion\nsfact\npr\nor\nmg\ncede\nSea\ntoE\not m\nIt\nngla\nap\nness of the title, and that is the only form of concession which Eussia\nasked of Great Britain, or which Great Britain gave to Eussia, The-\nsecond offer of Lord Salisbury to arbitrate amounts simply to a submission of the question whether any country has a right to extend its jurisdiction more than one marine league from the shore? No one disputes\nthat as a rule; but the question is whether there may not be exceptions\nwhose enforcement does not interfere with those highways of commerce\nwhich the necessities and usage of the world have marked out. Great\nBritain, when she desired an exception, did not stop to consider or\nregard the inconvenience to which the commercial world might be subjected \", and so on. And then he comes to what I cited.\u2014\" It will mean\nsomething tangible, in the President's opinion, if Great Britain will\nconsent to arbitrate the real questions which have been under discussion between the two Governments for the last four years.\n\" I shall endeavour to state what, in the judgment of the President,\nthose issues are \". And he propounds the idea of the issues as they\nappear in the Arbitration in somewhat different forms. One, two, three\nand four I need not trouble you to read\u2014\" What exclusive jurisdiction\nin the sea now known as the Behring Sea \", and so on; \" How far were\nthese claims of jurisdiction recognised \"; \" Was the body of water now\nknown as the Behring Sea included in the phrase 'Pacific Ocean'\", and\nso on; \"Did not all the rights of Eussia as to jurisdiction, and as to\nthe seal fisheries \", and so on; \" What are now the rights of the United\nStates as to the fur-seal fisheries\", and so on. And then I come to\nArticle VI which you will find is the beginning of Article VII of the\nTreaty.\u2014\"If the determination of the foregoing questions shall leave\nthe subject in such a position that the concurrence of Great Britain is\nnecessary in prescribing Eegulations for the killing of the fur-seal in any\npart of the waters of Behring Sea, then it shall be further determined\u2014\n\" (1) How far, if at all, outside the ordinary territorial limits it is necessary that the United States should exercise an exclusive jurisdiction:\"\nthat is regulations; \" Secondly, whether a closed season\", (that is also,\nof course, regulations); \"Thirdly, What months or parts of months\nshould be included in such season, and over what waters it should\nextend \". That is also regulations. Now, really, is it necessary that I\nshould go further?\nMr Justice Harlan.\u2014There is some difference between that paragraph and Article VH in the Treaty.\nSfr Charles Eussell.\u2014Certainly, but no difference that is the least\nmaterial on the point we are discussing, which is, whether or not no 146\nARGUMENTS ON PRELIMINARY MOTIONS.\nSenator Morgan.\u2014Will you allow me to ask you when it was the\nwords \" resorting to Behring's sea \" first find their place in this correspondence or in any programme or draft of the Treaty ?\nSir Charles Eussell.\u2014Well, Sir, I will not undertake to say offhand.\nSir Eichard Webster.\u2014It was in that letter.\nMr. Justice Harlan.\u2014No, not in that letter, is it?\nSir Eichard Webster.\u2014Yes, question 5.\nSenator Morgan.\u2014I merely want to know when they got into this\nTreaty.\nThe President.\u2014It is a very important topic.\nSir Charles Eussell.\u2014The. words occur, as my learned friend\npoints out in this Article V, but when it first occurs, I cannot say.\nMr. Phelps.\u2014A reference to two letters between these parties in\n1890 will show conclusively all that we undertake to assert on this\npoint, and that is, that if these nations could have got together on the\nquestion of regulations, this small matter of compensation woultl not\nhave stood in the way of a settlement nor given occasion for an Arbitration. On the 28th January, 1890.\u2014I reael from the third volume of\nthe Appendix to the Case of Her Majesty's Government, page 399, is a\nletter from the Marquis of Salisbury to Sir Julian Pauncefote, which is\nthe re-opening of the negotiations which I have referred to that had terminated in 1888.\n\"I have received your telegram of the 23rd instant, giving the substance of a note you had received from Mr. Blaine, in reply to the pro\nposals made to the Government of the United States for the re-open ing\nof negotiations on the Behring sea question. Her Majesty's Government will be prepared, when the text of the note reaches-them, to give\nit their careful consideration, and to return a formal reply.\" Then\nlower down.\u2014\"The following are the terms which Her Majesty's Government would be prepared to authorise you to propose' to Mr. Blaine.\n(a) That the tripartite negotiation for securing a close time in Behring's\nsea for the protection of the fur-seals should be resumed at Washington.\n(b) That all well-founded claims for compensation on the part of British\nsubjects for seizures in the past of their vessels by authorities of the\nUnited States should be dealt with by a separate negotiation as speedily\nas possible, but that it should be understood that Her Majesty's Government must be satisfied on this point before they can come to any settlement in regard to a close season, (c) Lastly, that an assurance\nshould be obtained from the Government of the United States that\nthere shall be no further seizures \", and so on. The answer to that is\nfrom Sir Julian Pauncefote to the Marquis of Salisbury by telegraph\ntwo days later.\u2014\"My Lord, I have the honour to inform your Lordship\nthat I think it is important that I should know the total amount of\ncompensation which is claimed for the seizures of British vessels in\nBehring's sea up to date before making the proposals indicated in your\nLordship's telegram of the 28th instant.\n\"I have told Mr. Blaine that Her Majesty's Government must have -\nsatisfaction on this point before they can agree to any settlement on the\nother question. Arguing from his stand-point, he denies any right of\ncompensation, but he is willing, for the sake of settling so grave a dispute, to consult the President of-the United\u00abStates as to a gratuitous\noffer of a lump sum in full satisfaction, in order that discussions on\nitems involving principles on which the views of the two Governments\nappear irreconcilable may be avoided. He has, therefore, asked me to\nobtain the above information as soon as possible. If this difficulty be ARGUMENTS ON PRELIMINARY MOTIONS. 147\nsurmounted, negotiations for a close season might be commenced at\nonce, subject to adequate assurances against further seizures, which, I\nthink, I might be able to obtain.\"\nTherefore while it is true that Great Britain said, Before we will\nreopen negotiations about regulations we must be satisfied in respect to\nthese seizures, Mr. Blaine replies, while we do not admit your right to\ncompensation we will offer you a lump sum in full satisfaction, if that\nwill enable us to get rid of this objection and there is not a question, if\nthey could have agreed on the other questions, this small matter would\nhave been settled. The United States would have paid the money and\nmade an end of it. As I said, the claims for seizures made in 1886 were\na comparatively small sum, as the Tribunal will find when they come\nto the merits of this case\u2014a comparatively small sum. Mr. Blaine,\ntherefore, well said we would rather pay this small sum than go into\nthis interminable dispute in which we probably can never agree.\nThe President.\u2014May I ask Mr. Phelps to remind us at what date\ncomes the Agreement the terms of which are embodied in Article IX\nof the Treaty, the Agreement for a joint commission.\nSir Eichard Webster.\u2014It was signed on the 18th December 1891,\nSir.\nMr. Phelps.\u2014Yes, signed on that day.\nThe President.\u2014That is but one year after the correspondence we\nhave been hearing of.\nSir Charles Eussell.\u2014A year and six months: the correspondence\nbegins in April 1890 and the arrangement is in December 1891.\nThe President.\u2014The observations made by Sir Charles Eussell are\nin a way opposed\u2014I do not personally quite follow it\u2014and as yet it is\nmy impression only\u2014that they are opposed to your construction of\nArticle IX. They justify it historically. I do not say that they justify\nit judicially, but simply historically, and your interpretation is in a\ncertain measure justified by the fact that there was a question of Arbitration at the moment when this Agreement took place for a joint\nCommission. 'That is what might be urged, I think.\nMr. Carter.\u2014The question was whether at the time when the first\nproposals were made for Arbitration by the British Government there\nwere negotiations going on between the Governments for an Arbitration upon the question of right.\nSir Charles Eussell.\u2014And damages.\nMr. Carter.\u2014And damages.\nThe President.\u2014Both parties agree on that?\nMr. Carter.\u2014Well, do both parties agree? My assertion was, and\nI read from the letter'of April 29th 1890, and its enclosure, the first\nproposal suggesting any Arbitration between the two Governments was\na proposal from Sir Julian Pauncefote; and that suggestion by him,\nincorporating the framework of a Treaty for the purpose of Arbitration,\ndid not extend to anything but regulations. The question which I\nunderstood the learned President to put was whether at that time there\nwere, outside of that letter, negotiations going on between the two Governments, in reference to an Arbitration, having a broader extent than\nthat. The assertion of Sir Charles Eussell was that there was at that\ntime, and that is what he undertakes to prove\u2014but allow me to say he\nhas proved nothing of tht kind, but proved the contrary\u2014he has produced no letter written prior to that time, but subsequently; and most\nof those he produced were communications, not between the United\nStates and Great Britain, but between different officers of Great\nBritain\u2014between Lord Salisbury and Sir Julian Pauncefote -contain- 148 ARGUMENTS ON PRELIMINARY MOTIONS.\ning suggestions of what they would propose, to the United States, but\nnot that, they had been proposed to the United States.\nNow, my assertion is that at the time that that scheme was proposed\nby Sir Julian Pauncefote there was no other suggestion of arbitration\npending between the two Governments. I said, at the same time, that\nafter that suggestion was made, not before, or at the time, the Government did go on to discuss the question of Arbitration, and to introduce\nother questions of right; but it was afterwards, and afterwards only.\nAt the time that that scheme was submitted, on April 29th 1890, there\nwas no other suggested scheme of Arbitration proposed on the part of\neither Government, and it has not been proved to the contrary. Indeed\nthat statement has been confirmed by letters read by Sir Charles\nEussell.\nMr. Justice Harlan.\u2014I want to ask as to a question of fact as\nbearing on the meaning of the word \" contingency\" as used in Article\nIX. I understand the Counsel for the United States to assert that the\nterms of the agreement for the appointment of Commissioners was, in\nfact, reached or determined upon by the parties in June 1891.\nSir Charles Eussell.\u2014Yes.\nMr. Justice Harlan.\u2014Now I want to know if there is any dispute\non that fact. I do not say what it means or does not mean.\nSir Charles Eussell.\u2014That is the fact.\nMr. Justice Harlan.\u2014Yes; at that time, though the question of\nArbitration was under discussion and had been too for a long while, they\nwere not agreed as to the first six Articles till, say, November 1891,\nand then on the 18th December 1891, both the terms of the Agreement\nand the terms of the Arbitration were signed by the parties. Is there\nany dispute as to those facts?\nSir Eichard Webster.\u2014The dates are correct; but the first five\nquestions had been agreed to in the early part of 1891, long before the\nappointment of the Behring Sea Commissioners, April 1891, and previous to the appointment of the Behring Sea Commissioners, the date of\ntheir appointment being the 22d June; there had been an arrangement\nmade\u2014a correspondence between Mr. Wharton and Sir Julian Pauncefote that the Commissioners should go out in order to obtain information for the purpose of the Arbitration then agreed to. I can give you\nthe date of the letter if you desire it.\nMr. Justice Harlan.\u2014If you could put them on a piece of paper,\nand give them to me I should be obliged.\nSir Eichard Webster.\u2014I can give them in a moment. Perhaps\nthe most important is the 14th April 1891, Mr. Blaine to Sir Julian\nPauncefote, which is a modification of the letter of the 17th of December\n1890, read by Sir Charles Eussell, stating the first five questions for the\nArbitration in the form which they ultimately took in the Agreement\nof December. Those five questions had been settled for the purposes\nof Arbitration as early as the 14th April 1891,\u2014that is at page 295 of\nthe first volume to the Case,\u2014the United States Appendix; and in the\nmonth of May or June there is the correspondence between Mr. Wharton and Sir Julian Pauncefote, before the Commissioners were appointed,\nthat those Commissioners should go out in order to obtain information\nwhich could be used in the Arbitration if necessary.\nThe President.\u2014The signature of those Articles was only on the\n18th December\u2014they get full authority only on the 18th of December.\nSir Eichard Webster.\u2014The 18th of December, 1891, is the full\nagreement. ARGUMENTS ON PRELIMINARY MOTIONS. 149\nSir Charles Eussell.\u2014Might I give this other date, in the large\nVolume that Mr. Justice Harlan has before him, very near the end of\nthe Volume, at page 161, the letters that have been referred to show\nthe views that had been discussed before the Treaty. This is a letter\nafter the Treaty has been concluded, showing what Mr. Wharton's view\nwas, who was then the Acting-Secretary for the United States.\nIf Mr. Justice Harlan would be good enough to turn to page 162.\nGeneral Foster.\u2014Will you give us the date of the letter?\nSir Charles Eussell.\u2014The date of the letter is the 8th of March\n1892. \"In your note of February 29, you state that Her Majesty's\nGovernment has been informed by the British Commissioners that so\nfar as pelagic sealing is concerned, there is no danger of serious\ndiminution of the fur-seal species as a consequence of this year's hunting, and upon this ground Lord Salisbury places his refusal, to renew\nthe modus of last year. His Lordship seems to assume a determination of\nthe Arbitration against the United States and in favour of Great Britain,\nand that it is already only a question of so regulating a common right\nto take seals as to preserve the species. By what right does he do\nthis? Upon what principle does he assume that if our claims are established\", and so on,\u2014it will not be an injury to our property.\nMr. Phelps.\u2014I beg to remind the Tribunal of another motion that\nhas been filed by the Agent of the United States, to strike out from\nthe Case certain claims for damages and certain evidence. We await,\nof course, the pleasure of the Tribunal as to the time when it should\nbe heard.' The hour for adjournment has nearly come. I wish only to\nsay that at some time, at the convenience of the Tribunal, and before\nthe argument on the merits commences, we desire to have an opportunity to present this motion, so that we may know at the beginning\nof the argument what claims and what evidence are regarded by the\nTribunal as in the Case, and subject to consideration.\nSir Eichard Webster.\u2014My learned friend the Attorney-General,\nhas asked me to deal with these matters. They are so small that I am\nperfectly willing they Should be discussed at any time the Tribunal\nthink convenient. We did understand the Tribunal to say the other\nday that\u2014and I read the words\u2014\" they consider that this other motion\nmust be reserved to a later stage of the proceedings \".\nMr. Justice Harlan.\u2014I ought to say that I simply understood, and I\nbelieve I made the suggestion to the President, that we would take up\nthe argument on the question of the supplemental report first.\nSir Eichard Webster.\u2014But may I say first with reference to this\nmatter, that I am perfectly willing, as I believe it is a very short matter\nand will require very little explanation, to take it up now. It can only\noccupy a very few minutes.\nThe President.\u2014The Tribunal would rather take the matter up at\nits next session; and I will ask Mr. Phelps at that moment to bring his\nmotion before us, and we will decide whether we will take it into consideration or not.\nThe Tribunal proposes to meet privately on Tuesday next, having no\npublic sitting on that day. So our adjournment today will be until\nWednesday, at half past 11 o'clock. .,.,\u201e., \u21220\nThe Tribunal accordingly adjourned until Wednesday, April 12,1893,\nat half past 11 o'clock. 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For permission to publish, copy, or otherwise distribute these images please contact\u00a0digital.initiatives@ubc.ca.","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/source":[{"value":"Original Format: University of British Columbia. Library. Rare Books and Special Collections. JX238 .F8 1895","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/subject":[{"value":"Bering Sea controversy","type":"literal","lang":"en"},{"value":"Sealing","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/title":[{"value":"Fur seal arbitration. Proceedings of the Tribunal of Arbitration, convened at Paris under the treaty between the United States of America and Great Britain concluded at Washington February 29, 1892, for the determination of questions between the two governments concerning the jurisdictional rights of the United States in the waters of Bering Sea. Volume XI","type":"literal","lang":"en"}],"http:\/\/purl.org\/dc\/terms\/type":[{"value":"Text","type":"literal","lang":"en"}]}}