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RUR SEAL ARBITRATION.

PROCEEDINGS

f "'of the ■ '■•'i'i^

Tribunal of Arbitration,

CONVENED AT PARIS

UNDER THE

TREATY BETWEEN THE UNITED STATES OF AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1892,

5S.^^n4S";i^.l,^

DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV-
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES

WATERS OF BERING SEA.

volunie: XI.

WASHINGTON:

GOVERNMENT PRINTING OFFICE,
1895.

•'- 7f^8J- J

ZcJ

FUR-SEAL ARBITRATION.

ORAL ARGUMENTS

ON

THE MOTIOISr OF THE BEITISH GOTEENMETsTT

FOK THE

PRODUCTION BY THE UNITED STATES OF THE REPORT
OF HENRY W. ELLIOTT,

AND ON

THE MOTIOl^ OF THE UISTITED STATES

REJECTION OF THE SUPPLEMENTARY REPORT OF
THE BRITISH COMMISSIONERS.

SESSION OF THE TRIBUNAL OF ARBITRATION.

SECOND DAY, APRIL 4™, 1893.

The President. — The Tribunal has decided to appoint Mr. A. Bailly-
Blanchard, and Mr. Cunynghaine, as co- Secretaries with Mr. A. Irabert.
Also, M. le chevalier Bajnotti, M. Henri Feer, M. le vicomte de Manne-
ville, as assistant Secretaries and these gentlemen are, therefore, to take
their seats.

Now, gentlemen, I address both the Agents and I may say that the
Tribunal is ready to hear any motion from either of you or your Counsel.
If anybody has a motion to present, the Tribunal are ready to hear it.

Sir Charles Russell. — i have, on the part of theGovernment of Her
Majesty, to make an application to the Tribunal which is based on Article
4 of the Treaty and also upon the general jurisdiction of tliis Tribunal to
regulate the order of its proceedings. The application is that the repre-
sentatives of the United States may be called upon to furnish either
the original or an authentic copy of an important Keport bearing upon
seal life, and tliat they may be so ordered for the assistance of this Tri-
bunal and in support of the contentions to be advanced on behalf of the
Government of the Queen. The Report in question is the Report of an
American citizen Mr. H. W. Elliott, and its subject is " Seal life".

It is important that the Tribunal should understand why we think it
necessary that this Report should be forthcoming and why we think
that the authority of Mr. Elliott on this subject should be brought to
the attention of the Tribunal. Mr. Elliott is a gentleman who in the
diplomatic correspondence leading up to this Treaty has been vouched
by successive Ministers of the United States as an authority without
any equal. Mr. Bayard, when he was Secretary of the United States,
writing upon the 7*" of February, 1888, describes Mr. Elliott as "a well
known authority on seal life". That communication is to be found in
the United States Appendix to their Case, and I can give my friends
the reference, if they have not it at hand. Later, on the V^ of March,
Mr. Blaine, who was then Secretary of State in America, on that date
quotes Mr. Elliott again, in similar language, as an important authority
on seal life; and linally on the 3''^ of July, 1890, Mr. Goff", Treasury
Agent to the United States, cites Mr. Elliott in this language. He says
"There is but one authority on the subject of seal life," and he refers to
Mr. Elliott as that one authority.

Now as to the Report, the Report which we desire is one which has
peculiar importance from the fact that the authority of Mr. Elliott to
make this special Report was conferred upon him by an Act of the
Legislature of the United States which came into force in April, 1890.
He was appointed under a special Act which authorises the Secretary
of the Treasury to appoint some person well qualified by experience and
education a special agent for the purpose of visiting the various trading

3

4 ARGUMENTS ON PRELIMINARY MOTIONS.

stations and native settlements on the seal Islands and so forth, for the
purpose of collecting- and reporting to him all possible authentic informa-
tion upon the present condition of the Seal Fisheries of Alaska and so
forth. The Tribunal, therefore, cannot fail to see that, if it be within
the competence of this Tribunal to acquire possession of the informa-
tion which such a Report presumably contains, that it is a matter of
considerable importance.

Now how is this document referred to? The document exists, and
that is not disputed by my learned friends who represent the United
States. The report was made conformably to the Statute that I have
cited a special report to the authorities of the United States, to be found,
therefore, among the archives of the department to which it specially
belongs. Our information, that is to say, the information of Her Maj-
esty's Government, is and can only be secondhand upon the subject of
this Report. Our information is derived from a publication made by
Mr. Elliott, in which Mr. Elliott himself refers to this Report, and that
publication was made on the 17"' of November 1890, and is set out on
page 53 of the 3^"'^ part of the Appendix to the Case of Her Majesty's
Government. Here it is referred to as having apijeared in the columns
of an American paper called the "Cleveland Leader and Morning
Herald", of the 4"^ of May, 1891 ; and it is there signed or purports to be
there signed "H. W. Elliott." lb also purports to be, although so set
out in the journal which I have mentioned, a copy of a communication
or part of a cojiy of a communication purporting to be addressed to the
Hon. William Windom, Secretary to the Treasury. It is, therefore, in
the documents before the Tribunal, first referred to in the Case on behalf
of Her Majesty. It is next referred to in the Counter Case of the United
States at page 75 ; and I rely, and I think it right at once to call the
attention of my learned friend to it, not merely on the fact of the ref-
erence which 1 am about to read, but upon the character of that refer-
ence, as a justification for the application which I am now making.

It is thus referred to. "The Commissioners", that is the British
Commissioners, "also rely on a Newspaper extract which purports to be
a summary of a report made by Mr. H. W. Elliott in 1890 to the Secre-
tary of the Treasury to establish several alleged facts. One of these
statements in this alleged Summary is that there were 250,000 barren
female seals in the Pribiloflf Islands in 1890. This is cited by the Com-
missioners to show the lack of virile males in the rookeries in that year."
They then proceed. " An examination of the Extract as published in
vol. 3, which is the reference I have given to the Tribunal in the
Appendix to the case of Great Britain, "discloses the fact that this
statement", that is to say the statement of figures, "appears after the
signature of H. W. Elliott, and it cannot, therefore, be construed as a
portion of such report. Furthermore, how the Commissioners can ques-
tion Mr. Elliott's liower to compute the number of seals on the island as
they have done, and still rel^^ at all on his computation as to the num-
ber of barren seals, needs explanation." The Tribunal therefore will
see, first of all, the fact of the report is not questioned, but what is
questioned is the authenticity of, the correctness of, the extract which
purports to be given in the paper from which the British Commissioners
of Her Maijesty's Government in their Case cite.

Now in that state of things Her Majesty's Government considered
that it was of moment that the actual report, or an authentic copy of
it, should be at the disposition of those who advised the Queen, to use
it as they think right, and to place it before this Tribunal if it throws
any imi^ortant light on any part of the discussion in which this

ARGUMENTS ON PRELIMINARY MOTIONS. 5

Tribunal is engaged; and accordingly on tlie 10*'' February in tbe
present year the Agent of Her Majesty's Government addressed a letter
to Mr. Foster, the Agent of the United States, in these terms. It relates
to several documents, and I will only read that part of it which refers
to this report. "The undersigned Agent of Her Britannic Majesty's
Government has the honor, by the direction of Her Majesty's Govern-
ment, to give notice that lie applies for the production by the Agent of
the United States of the following documents or copies of the following
documents." — And then, under tlie third head, the document in ques-
tion is thus described. "A full copy of the report of Mr. Henry W.
Elliott in 1850 specified and alluded to on page 75 of the United States
Counter Case". The answer of Mr. Foster to that demand was made
in writing on the 16*^ February 1893, and referring to the document
in question (I omit the other parts) this is the answer which the Repre-
sentative of the United States thought proper to make. "The third
document" (that is this report) applied for by Her Majesty's Govern-
ment Agent is a full copy of Mr. H. W. Elliott's report iu 1890 speci-
fied and alluded to on i)age 75 of the United States Counter Case.

"The undersigned begs to make the following statement in relation
to the document applied for. The reference cited iu the notice of the
Agent of Her Britannic Majesty is in the following words", And
thereupon is repeated the passage which I need not trouble you with
reading again. It then proceeds: "The Counter Case of the United
States alludes to a newspaper extract, not to Mr. Elliott's Eeport, and
specifically to the same as published in the Appendix to the Case of
Her Majesty's Government." The unwarranted construction placed
upon the citation by the Agent of Her Britannic Majesty's Govern-
ment is obvious.

The next paper extract to which reference is made, is cited by the
British Commissioners, and therefore, it is to be supposed, is in their
possession. If not, it can be as readily obtained by Her Majesty's
Government as by the Government of the United States, which has
not the same in its own "exclusive possession", which is the condition
precedent required by Article 4 for the production of any report or
document specified or alluded to. I will come to the construction of
Article 4 in a moment. At present I wish to convey to the mind of the
Tribunal what this answer amounts to.

First of all, what does it not amount to? It does not challenge the
fact that there is an official report in existence made by one specially
charged by the United States with the duty of making that report.
It does not deny that that report is in existence, and may be made
available should this Tribunal see fit so to direct. But what it does
say, in effect, is this: — You first referred to this report. You refer to
a newspaper extract. That newspaper extract is not exclusively in
the possession of the United States. Your production of it shows that
it is in your possession, and you have just as good means of getting
that newspaper extract as we, the United States. That is their
answer. I agree the answer is perfectly correct, as far as the news-
paper extract is concerned. It is equally available for both of us; but
what we want is to get the report which is referred to in that news-
paper extract: to get that rei)ort in extcnso. Our ground for urging
as a matter of good sense and of equity that we must have that report
is this; that they have in their reference to that extract challenged
its correctness, and its authenticity, and have alleged that the state-
ment referred to as a statement of Mr. Elliott is not to be regarded as
a statement of Mr. Elliott, because, as aj^pears in the newspaper

6 ARGUMENTS ON PRELIMINARY MOTIONS.

extract, it appears to have been written under and not above his signa-
ture, and they take the point that upon the construction which they
are pleased to give to the 4**^ clause of the Treaty, a condition prece-
dent to the production of the original or an authentic copy is that the
document referred to in the Case or Counter Case shall have been
shown to have been, or to be, in the exclusive possession of one of the
parties. With great, deference to those who so contend and respect-
fully submitting the views which the government of the Queen enter-
tain, that would indeed be a very narrow, and, as we submit to your
judgment, an unsound interpretation of article 4.

Now I would ask the attention of the Tribunal while I submit what
is the true construction of that article. It turns upon the last clause
of that article, beginning Avith the words "If in the Case". I think
my learned friends will probably agree that the earlier part is not
material or not directly material to the purposes upon which we now
aie engaged. "If in the Case submitted to the Arbitrators either
party shall have specified or alluded to any report or document in its
own exclusive possession, without aniiexing a cojiy, such party shall
be bound if the other party thinks proper to ap]>ly for it, to furnish
that party with a copy thereof." Now I agree that so far as I have
read this clause of article 4, it does point to applying only to docu-
ments in the exclusive possession of one party, and referred to by that
party.

But it is the second branch of this clause upon which I mainly rely.
It then proceeds, " and either party may call upon the other, through
the Arbitrators, to produce the originals or certified copies of any
papers adduced as evidence, giving in each instance notice thereof
within 30 days after delivery of the Case". The distinction, therefore,
between these two branches of this rule is, I submit to the Tribunal,
obvious. The first part deals with a document exclusively in the
possession of one of the parties, and referred to by such one of the
parties in the Case submitted. The second branch deals with a much
wider, and much more important matter. It deals with this, that if
there exist in the possession of either party the original documents
which are important in the elucidation of the truth and in arriving at
a proper conclusion upon the facts, then the party who desires to rely
upon such document shall not be driven to rely upon uncertain, unsafe,
secondary evidence, or partial evidence, or extracts from the document
in question; but that the Tribunal shall have the means of assisting
that party in putting before the Tribunal the actual, authentic docu-
ment itself, or an authentic copy of the document itself. Surely that
is the reason of the thing.

Lord Hannen. — You have not referred to the words " adduced as
evidence".

Sir Charles Russell. — I read that.

Lord Hannen. — I know you did.

Sir Charles Hussell. — " Of any papers adduced as evidence", I am
coming to that next branch in a moment, but I read the words " adduced
as evidence".

Lord Hannen. — Yes you did.

Sir Charles Russell. — In this case we have adduced this report as
evidence. We have cited it in our Commissioners' report. We have
cited it in the third part of the appendix, page 53, to which I have
referred, but that is only what lawyers call secondary evidence of the
report. In a court of law, as my learned friends well know, governed
by strict rules of evidence as they are understood both in America and

ARGUMENTS ON PRELIMINARY MOTIONS. 7

in England, that would not be evidence at all. Therefore before this
Tribunal, not hampered by technical rules of evidence, it is at the best
only a secondary class of evidence, and if we had the document admitted
as it is set out, imjierfectly set out, in the documents connected with
our Case by the United States as authentic and a« reliable, the impor-
tance of the question would be here comparatively small. Again, I must
emphasize that which is the important point in this case. On page 75
and 76 of the Counter Case the United States, — and, as I see, the Mem-
bers of the Tribunal have not their books at hand for the moment, I
had better read it in full beginning at the second paragraph on page
75, — it reads thus. "The Commissioners" — I have read this already,
but I will repeat it, — " also rely on a newspaper extract which purports
to be a summary of a Report made by Mr. Henry W. Elliott in 1890 to
the Secretary of the Treasury to establish several alleged facts. One
of these statements in this alleged summary on Pribilofl' Islands in 1890
(section 382, page 40) is that there were 250,000 barren seals."

This is cited by the Commissioners to show the lack of virile males on
the rookeries in that year. "An examination of the extract as pub- "
" lished in Volume 3 of the appendix to the Case of Great Britain dis- "
"closes the fact that this statement appears after the signature of"
"H. W. Elliott, and it cannot, therefore, be construed as a portion of"
" such Keport. Furthermore, how the Commissioners can question "
" Mr. Elliot's power to compute the number of seals on the Islands,"
" as they have done, and still rely upon his computation of the number of "
" barren females, needs explanation." Now, paraphrase this paragraph.
When they say the British Commissioners rely on newspaper extracts,
I ask why should they be called upon to rely upon a newspaper extract
when the authentic document exists and is procurable? Why are the
United States through their Agents to be considered justified, on page
76, in throwing doubt upon the authenticity of one of the extracts that
upon the fact that, extract in part does not represent conclusions of Mr.
Elliott and is not part of his report, when the point can be determined
not by conjecture or speculation, but by examination of the actual
documents in the possession of the United States itself? I find great
difficulty, and I say it with all sincerity, in appreciating why it is that
this document, which owes its origin to a solemn Act of the Legislature
of the United States, should raise what I must, quite respectfully, call
the very narrow and very technical objections to this document which
are stated in the answer to the application for the document by the
Agent for the United States. I base my application, therefore, upon
these grounds : — First of all, that we ought not to be driven to rely
upon secondary evidence of a document the original being in the pos-
session and under the control of the representatives of the Government
of the United States; next, that it is within the terms of Article 4, that
this Tribunal should not compel us to rely upon secondary evidence, but
may, for their own information and for ours, direct the production of
the original or an authentic copy. I say the power is conferred upon
this Tribunal under article 4 in the second clause, which I have read;
but I say, if there were no such Article at all and even in face of that
Article, this Tribunal surely has the right to call for, for the better
information of its own judgment, and surely has, inherent in itself, as
a Tribunal to determine difficult and somewhat complicated issues, a
right to say this is a document which, from every circumstance attend-
ing its history, ought to be regarded as one of importance in this con-
troversy, seeing that it was procured at the instance of the executive of
the United States itself for the very purpose of informing those who

8 ARGUMENTS ON PRELIMINARY MOTIONS.

are advising the Government of the United States on the very qnes-
tions dealt with or largely dealt with in the controversy now before this
Tribunal. These arc the grounds upon which I submit that we are
entitled to have this document; and I cannot doubt that if the Tribunal
or any portion of the Tribunal express its opinion (and I cannot doubt
that it must be in the minds of many of them) that it is but reasonable
and right that this document should be forthcoming and be judged
according to its merits by each member of this Tribunal, I cannot doubt
but that further objection to its production will be withdrawn.

The President. — I would ask Sir Charles Eussell to be kind enough
to put his motion in writing and communicate it to the Secretary of the
Tribunal, so that we may have the exact words of the motion before us.

Sir Charles Epssell. — Certainly.

Sir KiCHARD Webster. — I ask to be permitted. Sir, not to repeat, but
to supplement, the argument of my learned friend the Attorney General
by a reference to one or two other documents in evidence which strongly
enforce, in my respectful submission, his contention. You are aware
that by Article 3 of the Treaty the printed Case of each of the two
parties, accompanied by the documents, the official correspondence, and
other evidence on which each relies, shall be delivered in duplicate; and
you are further aware. Sir, that by the earlier clause of Article 4, within
3 months after delivery on both sides of the printed Case, each party
may in like manner deliver in duplicate to each of the Arbitrators, and
to the agent of the other party, a Counter Case, and additional docu-
ments, correspondence, and evidence, in reply to the Case, documents
and evidence, so presented by the other party". My learned friend, the
Attorney General, has called the attention of the Tribunal to the fact
that in the Appendix to the original British Case lodged in September
last, there was the best evidence that we could then obtain of the docu-
ments in question. It was that which purported to be, under the signa-
ture of M)'. Elliott, addressed to a Government official, verbatim extracts
of part, and but of part only, of his Report.

Now, Sir, comes the additional matter to which I respectfully call the
careful attention of this Tribunal. A diflerence having arisen between
the United States and Great Britain as to the true construction of the
Treaty, Mr. Foster asked that some further documents should be sup-
plied (I am stating this of course in a very few words) and accordingly
it was by arrangement, which will be found in the letters of Mr. Foster
to Mr. Herbert, and of Lord Roseberyto Mr. Herbert, of the "2*^ Septem-
ber and the 1**^ October last year, arranged, in deference to the views of
the United States, that the report of the British Commissioners should
be treated as part of the Case of the Government of Her Britannic
Majesty. I need not now. Sir, discuss the merits of that dispute. I
will merely say that the Government of Her Britannic Majesty, in fur-
therance of the desire that this Arbitration should be conducted with
the fullest information on both sides, accepted the view put forward by
Mr. Foster on behalf of the Government of the United States that the
Report of the British Commissioners should be furnished, and should
be treated as part of the Case of the Government of Her Britannic
Majesty. In that Report, with which I know the Tribunal are familiar,
in sections 433 and 832, the Report of Mr. Elliott is referred to in sup-
porting certain statements of fact upon which the British Commissioners
relied. We had at that time therefore before us, Sir, what I may call
three separate allegations of fact all based upon that, which we had
reason to believe was an authentic extract- from Mr. Elliott's Report,
it having been signed by himself and being sufficient for our purpose.

ARGUMENTS ON PRELIMINARY MOTIONS. 9

Had the matter stood there itmifjht have been su^g'ested that tliat was
all we wanted; bnt the United States, by their criticism, to which the
Attorney General lias called attention, submit to this Tribunal that it
is to reject part of the secondary evidence which has been put forward
by Her Majesty's Government, upon the ground that upon the face of
the newspaper account of the Keport it was to be presumed that in this
respect it was not trustworthy; and I beg the Tribunal to notice, that
the Government of the United States had in their possession at that
moment the original report addressed to the Secretary of the Treasury.

Now I need not again enforce what the learned Attorney General has
said on the criticism of the United States with reference to allegations
made on behalf of Great Britain, but I now again call the attention of
the Tribunal to the Treaty. The original of any iiaper adduced as evi-
dence is to be ordered by the Tribunal to be produced, if in its discretion
the Tribunal consider that it is material or pertinent to the matter before
it; and I again remind this Tribunal that it is a rule not only of this,
but of all tribunals which exercise judicial functions, that the best evi-
dence is to be at the service of the tribunal if it is possible. That is only
in the event of the failure of their being able to obtain the best evidence
that secondary evidence becomes either reasonable, or such as the Tri-
bunal should rely upon.

Mr. Justice Harlan. — Does your motion comprehend the filing of
this paper as evidence?

Sir liiCHARD Webster. — My motion, Sir, comprehends the produc-
tion of this paper, so that the original may be referred to by either side,
and certainly by the Counsel for Great Britain, as the best evidence —
as the evidence of the Report which Mr. Elliott made, which we have
already referred to in our Ai)pendix. It is already in evidence ; we have
referred to it in our Appendix; it has been treated by the United States
in their Counter-Case as evidence; it is criticized upon the ground that
it is evidence, but it is said that a part of it you must reject, because it
happens to be written below the signature of the gentleman who pur-
ports to make the Report. I ask, suppose it be the fact that in the body
of the original Report there are the same figures which are referred to
after the signature in the extract given to us, my learned friends who
represent the United States would be the first to admit, that if those
figures were there they would not rely upon the accidental circumstance
that in the particular form in which they were cited by the paper they
do not appear, but that they are in the body of the Report to which
reference has to be made. I again respectfully press upon this Tribunal
that, without saying that a Treaty of this description is not to be con-
strued by the cast iron rules which we as lawyers might possibly apply
to legal or conveyancing documents, it is evident that if either party
refers in evidence to documents, the originals of which they have not
got or have not produced, the Tribunal shall order, if they see it is rele-
vant, the original to be produced. It cannot make any difference in
whose custody the original document is. Supposing it happened that
this was a document which the United States desired to produce or give
in evidence, it would be no answer for us to say, "You have got some
means of referring to the contents of that document"; the Treaty has
required the Tribunal and has enabled the Tribunal in its discretion to
call for originals which form part of the evidence adduced by either party.

Sir, I have but one more word to add. It is, in fact, alluded to in the
sense of the Treaty even by the United States themselves, because they
do not S])eak of it as merely a newspaper report of sonu'thing which
Mr. Elliott is supposed to have said. Tliey refer to it as a newspaper

10 ARGUMENTS ON PRELIMINARY MOTIONS.

extract which purports to be a summary of a report made by Mr. H. W.
Elliott to the Secretary of the Treasury. Therefore we respectfully
submit to this tribunal that upon first principles which govern the laws
of evidence, in the broadest sense of the term, an original document
which has been alluded to by the party desiring to refer to it, which
has been made part of their evidence by the original Case and by that
which upon the invitation of the United States was to be treated as part
of the original Case — the original of that document, we humbly sub-
mit to this Tribunal, must be produced; and we further point out that
it could scarcely be contended that because the only means accessible
to us happened to be in the first instance a newspaper extract from that
report, therefore we should be denied access to the original.

Sir Charles Kitssell. — The form of the Order, sir, which I should
suggest tliat this Tribunal should make and which we request that they
should make, is this, that the Agent of the United States be called upon
by the Tribunal to produce the original or a certified copy of the Report
made by Mr. Henry W. Elliott on the subject of the fur seals, pursuant
to the Act of Congress of 1890.

The President. — Have the United States anything to reply to this
Motion?

Mr. Phelps. — The disposition, Mr. President, which we shall propose
to make of this application relieves us from the necessity of troubling
you long upon the subject of its admissibility. The circumstances how-
ever that attend, and have heretofore attended this application, and one
which preceded it, are such that we have not thought it right to allow
the subject to pass without an explanation to the Tribunal of the attitude
of the United States upon this subject, because it bears collaterally, in a
very important way as we conceive, upon other questions that the Tri-
bunal will hereafter encounter. Now, to begin with, 1 do not preceive
that the remark of my learned friend as to the value of this evidence, is
germane to this enquiry. The question is not upon its weight, but on
its admissibility. If it were ever so valuable, if not admissible it is not
to be admitted. If it were comparatively of no value at all, if it be
admissible they are entitled to have it in evidence. Another observa-
tion of my learned friend. Sir Charles Eussell, to which possibly I
attach more consequence than he did, is on the subject of what he
terms the general jurisdiction of this Tribunal. On these questions of
procedure we respectfully deny that under the Treaty the Tribunal is
invested with any such jurisdiction. If you were sitting as a Court,
a court of general judicial powers, the incidental discretion that would
attend the Tribunal, as we all know, is very large. The Treaty might
have invested this Tribunal with such discretion and such powers. It
has foiled to do it. It has undertaken to specify with great certainty
and particularity the method of precedure in bringing before the Tri-
bunal the evidence which they are entitled to consider. I do not
enlarge upon this point now, as it will become the subject of discussion
in a subsequent motion. I only make the observation, that it may not
be thought that we concur at all in the idea that this high Tribunal is
invested with any power to admit evidence, or consider evidence, except
precisely that which is conferred upon them by the Treaty under which
they are constituted.

It is true, as has been stated by my learned friend, that an applica-
tion was made to the agent of the United States in February for the
production of this document, and it was refused upon the ground
which he has read to the Tribunal; refused upon a further ground
stated later in the letter of the agent, which he has not read. It is

ARGUMENTS ON PRELIMINARY MOTIONS. 11

only so far as may be necessary to justify the position of the United
States Government on this subject, that I shall trouble the Tribunal
with any remarks. If this document is admissible, it is made so by the
last paragraph of article 4 of the Treaty, the only one which has any
reference whatever to the subject. "If in the Case submitted to the
Arbitrators either party shall have specified or alluded to any report
or document in its own exclusive possession, without annexing a copy,
such party shall be bound, if the other party thinks proper to apply for
it, to furnish that party with a copy thereof". That is the first half of
the paragraph. I shall consider the other further on. It will be
observed that the language of this provision is restricted to the Case
that has been furnished by either party; not to the Countercase, which
is a very different document. Article the third, as has been already
pointed out, provides for the delivery in duplicate by each party to the
other and to the Arbitrators, at a particular time, of a Case. Article
4 provides for the subsequent delivery by each party to the other, and
to the Arbitrators of a Countercase. Both words are used throughout
the Treaty. Each has its own meaning, and its own application. It
is not claimed on the part of my learned friends that any allusion to
this document whatever on either side took place in the Case, certainly
not our side; and I believe not on theirs. It is in the Counter Case
that the allusion is made, which appears to them to lay the foundation
for an application for the document.

Now, it may be said, as has been said, this is a technical construc-
tion. That the more liberal view would be to treat the word "Case"
in this connection as including the entire submission by the party of
his allegations and evidence. The difficulty with that construction is
that what comes in in the Counter Case cannot be subject, under the
terms of the Treaty, to any reply, contradiction or explanation. The
Treaty closes the door, on the delivery of the Counter Case, to the
admission of any evidence whatever upon any subject; so that while
if a document is so far alluded to in the case of a jjarty as to make it
properly the subject of an application for the whole document, so that
the party applying for it can in his Counter Case make the proper reply
by evidence and allegation, there is a propriety and force in the pro-
vision ; but if, on the other hand, it is open to the party to call for the
production of a document which is alluded to for the first time in the
Counter Case, then that document which comes in as evidence for all
purposes for which it may be legitimately used, cannot be answered
on the other side. That is the reason; and that is one of the reasons
assigned by the Agent of the United States in the latter part of the
letter which my learned friend has read as one of the grounds upon
which this application is declined.

But, to go farther, suppose for the purposes of argument that the
word "Case" here includes the Counter Case; what sort of an allusion
or s]iecification is it which the Treaty requires as the foundation for an
api)lication for such a document?

Senator Morgan. — Is there no allusion to this paper in the British
Case?

Sir Charles Russell. — Certainly there is, atpage53of the Appendix.

Mr. Phelps. — There is none in ours, and I had the impression there
was not in theirs. But that is immaterial, because, as I am going to
I)oint out, it is " our" allusion that must be the subject of this applica-
tion, not theirs. Our first allusion to it, if it be an allusion to it within
the meaning of the Treaty, which we deny, is to be found in the Coun-
ter Case, in the passage that has been read by my learned friend. "If

12 ARGUMENTS ON PRELIMINARY MOTIONS.

either party shall have specified or alluded to any lieport in its own
exclusive possession without anuexinji; a copy," what is the meaning of
that? It is that if either party shall have brought forward by specifi-
cation or by allusion any document in support of any contention and
has relied upon it, and has put it forward so that his Case is in any
resi)ect strengthened by the allusion, then at the instance of the other
side he shall produce the full copy of the document he refers to. And
that provision is founded in the greatest and most obvious propriety.
But is a reference to a document in the Counter Case in reply to a part
of it that has been brought forward on the other side, such an allusion
as the Treaty contemplates? It is difficult to read these words without
perceiving what the spirit and object of the i^rovision is, that a party
shall not be permitted to fortify himself in any way by a reference to a
written document in his own exclusive possession, without giving the
other side (if they ask for it) the benefit of the entire contents. But
when the other side thinks proper to allude to some copy or extract in
their own possession out of a newspaper and a reply is made to that in
the Counter Case saying that it is not authority or is not material, have
we brought forward the Report as in any way assisting the case of the
United States? I do not i)ress the subject, because it is immaterial.
I have said thus much in order to state the justification which we think
existed, and exists now, for the refusal of the United States in Febru-
ary to produce this document. And if it be said that the refusal was
based upon a technical ground, although, the technical ground is well
founded correct, I may be permitted to say that this Case will not pro-
ceed very far, in my judgment, without disclosing that we should have
been j)erfectly justified, and are perfectly justified, in standing upon
any ground iii respect to the admissibility of evidence, whether it is
technical or not.

A subsequent contention of my learned friend is, under the latter
clause of this Article, that either party may call upon the other through
the Arbitrators to produce the originals or certified copies of any papers
adduced as evidence. Adduced as evidence by whom? By his adver-
sary. Was it ever heard of in a Court of Justice that one party, by refer-
ring to a document, can compel the production of it on the other side?
Where a document is in the exclusive possession of one side, under the
rules of law that prevail in England and in America, before secondary
evidence of it can be given by the other, notice to produce it must be
given. If that notice is not complied with, the secondary evidence
becomes primary evidence, and is admissible. In some jurisdictions,
there are statutes under which through the process of a subptena, pro-
duction of papers, private papers to some extent, and under -various limi-
tations, may be called for. I know of no general rule of law in England
or in America that justifies a party in calling upon his adversary to
produce a document, I mean to comi)el his adversary to produce a docu-
ment, because he has referred to it as part of his Case.

Now let me add another word. This paper was produced and fur-
nished to the British Commissioners during their Session at Washing-
ton, and remained in their possession as long as they cared to keep it.
It will be seen therefore that there has been no disposition on the part
of the United States Government to withhold or to conceal it; and the
foundation of the objection which we conceive to be an unanswerable
one upon the terms of this Treaty to being compelled to produce it, was
the fact that, if produced, it came in as it comes in now, too late to be
met by the proper reply.

ARGUMENTS ON PRELIMINARY MOTIONS. 13

I shall not follow my learned friend in reraarkinj? upon the value of
this paper; that is a subject that will engafi^e the attention of the Tri-
bunal later on. It will be seen how valuable it is. It will be seen
whether there is any reason on the part of the United States Govern-
ment why it should be withheld. It is enough for me to say now, that
it has not been withheld from the Commissioners, that it would not
have been withheld from the other side if it had been asked for in time
to prepare a reply; that it was refused because being a document of
great volume and extent, it would have come in too late to have been
met by the explanation and the evidence which we think should accom-
pany it.

Now, having" said all this, Sir, let me say that we shall produce the
document, and give our learned friends the benefit of it, with the under-
standing, which I assume to be, from the language of my friend. Sir
Richard Webster, satisfactory to them, that it conies in as evidence for
the benefit of either party.

Senator Morgan.— Mr. Phelps, do you think that the Counsel in this
Case before this Tribunal, by an ag-reement amongst themselves can, at
this hour, bring evidence into this cause"?

Mr. Phelps. — I was going to remark upon that. Sir, in a moment.
I do not think, as I shall have occasion to say at greater length, that
there is any jDower to bring evidence into this case at this stage. But
we do not choose to stand — we prefer that the Government of the
United States should not stand in this enquiry, subject to the rej^roach
of having attempted to withdraw or withhold or stifle anything that
throws any light upon the subject. The conduct of the whole case I
may respectfully submit, as it will sufficiently appear in due time, has
been the other way.

Senator Morgan. — But how can the Tribunal give its consent to
exceed its powers merely for the purpose of preventing incrimination
or recrimination between the Governments by their counsel in debate?

Mr. Phelps. — That will be a question entirely for the disposition of
the Tribunal. We are making no admission that binds the Tribunal.
We are making a concession that binds only ourselves. We say that
if the Tribunal at this stage of the case desire to consider this docu-
ment, we shall have no objection. That is as far as we go. But it
must be understood, and tliat is the object of these remarks, that we
in no respect concede what, before the day is over, we shall be called
upon to deny most emphatically — the right of a party to introduce any
evidence — any further evidence — at this stage or any future stage of
the Case. In making the concession, so far as we are concerned, sub-
ject, of course, to the judgment of the Tribunal as to the use they will
permit to be made of it, it must be understood that it is without w^aiv-
ing in the least the position, that no evidence at this stage can be intro-
duced as a matter of right.

Mr. Justice Harlan. — It can be lodged, then, as evidence to be used
by either party, subject to the judgment of the Tribunal, when they
look into it, as to their power to use it.

Mr. Phelps. — Certainly, Sir, we are not presuming to suggest to the
Tribunal what use they shall think proper to make of this document
when it comes before them; that is for them to consider.

Senator Morgan. — Does the same argument apply to that part of the
British Case which Counsel have alluded to, which came in after the
Case had been placed in the hands of the Arbitrators"?

Lord Hannen. — That is a different question. That depends on other
elements.

14 ARGUMENTS ON PRELIMINARY MOTIONS.

Mr. Phelps. — That is a question which will come iip later.

Senator Morgan. — That was referred to and as a case analogous to
this, and an authority on this question.

Mr. Phelps. — That will come up later, under other motions, for dis-
cussion, but as the question has been put by the learned Arbitrator, I
may say that in our judgment no such evidence can be j^roperly consid-
ered. That will be our position when we reach that question. All I
desire to say now is that, without conceding, and emphatically denying
that the terms of this Treaty entitle Her Majesty's Government to call
for this document, we prefer to consent to put it in evidence, with the
understanding that, if used at all it is open to both sides, leaving it to
the Tribunal to attach such value to it, and to make such use of it as
they may deem proper. The whole subject, let me say in conclusion, of
the time and manner in which evidence not in reply can be brought
before the Tribunal, will come up later and will come up all the way
through the discussion of this case.

Mr. Carter. — Mr. President and gentlemen, in respect to this par-
ticular paper there is not, it seems to me, very much importance in this
discussion, and I quite concur with my learned associate in his manner
of dealing with itf but in respect to our views as to the powers of this
Tribunal there is a great deal of importance, and it seems to me that
any discussion concerning them, whenever it is brought forward, should
be conducted with deliberation, and nothing should be taken for granted.

I am moved to add one or two observations here, solely in conse-
quence of some remarks which were made by our learned friends upon
the other side. The first of them which attracted my attention was
that the refusal by the agent of the United States to furnish the docu-
ment in question, when the demand was made for it in February last,
and the grounds upon which that refusal was placed, seemed to exhibit
a very narrow interpretation of the provisions of the Treaty, and of the
necessities of the controversy, and also exhibited a disposition to rely
upon technical considerations.

If the object was to indicate that the United States, in their dealing
with this controversy generally had been at all disposed to withdraw
from the attention of the Tribunal which was to dispose of it any evi-
dence which was pertinent to the merits of it I am very sure that such
an imjiutation would be wholly erroneous. It is our belief that the
Government of the United States, at every step during the pendency of
this controversy, has exhibited the largest and most liberal spirit in
reference to the production of evidence which would be pertinent to the
merits. If there was any facility which it peculiarly enjoyed for the
ascertainment of truth, it has been ready, I think, from the start to
furnish it to the Government of Great Britain. My learned friends
upon the other side will remember, and the Tribunal must be aware
from the case which has been laid before it, and the papers contained
in it, that at the very outset the Pribiloff Islands, which are the arena
out of which the controversy arose, were freely thrown open to the
inspection of Her Majesty's agents. A special agent was allowed to go
out there for the purpose of making enquiries, and for the purpose of
gathering evidence which it might be useful for Her Majesty's Govern-
ment to incorporate into the Case which was to be submitted to the
Tribunal. If there was any knowledge in reference to the habits of the
seal to be gathered from that Island, if there was any information in
reference to the industry carried on upon that Island which might be of
any sort of use to Her Majesty's Government, it was freely thrown open.
I think the same coui-se has been pursued in reference to documentary

ARGUMENTS ON PRELIMINARY MOTIONS. 15

evidence whicli might be supposed to be in our exclusive possession. I
think it will be admitted upon the other side that they have from time
to time called for documents to which perhaps they were not entitled
under the provisions of the Treaty, and which were yet freely thrown
open to them ; but I make this observation for the purpose of showing
that there has been at no time on the part of the United States any
disposition to withhold fi'om this Tribunal, or to withhold from the
otber side, any evidence pertinent to the merits of the controversy.

We did, however, refuse to furnish this report. And why! The
Tribunal must have perceived already that there is something peculiar
about this report. I may assume that the Tribunal is familiar with the
practice of Governments to print and publish important reports and
documents — reports which have been made pursuant to provisions of
law. If Commissioners are appointed for the purpose of making en-
quiries — (appointed by a legislative body — our Congress for instance) —
their report is, in the ordinary course of things, published and made
known to the world. It already appears as a fact that this was not the
case with regard to this particular document. Her Majesty's agent
found the extract which he has incorporated in his case in a news-
paper. That was the only mode by which it appears he was able to
obtain it at that time. Therefore, there is something peculiar about
this report. What is that? Well, I am not at liberty to say, because
the evidence for it is not furnished by the Case; but I am at liberty to
say what well may have been the case, — it may have been a report
which the Congress of the United States that authorised the investiga-
tion which led to it conceived to be wholly erroneous, wholly unworthy
of credit, unworthy of publication, unworthy of adoption. It may
have been of that character. It may have been a report which, in the
judgment of the Congress of the United States, was inspired by bad
motives, and, therefore, not to be made public. It may have been a
report which, in their judgment, was inspired by motives hostile to the
interests of the United States, and hostile to their management upon
the Islands, and for that reason, therefore, not to be published. All
these facts, or some one of them may have been true, or may not have
been true. Something was true about it — which led to the withholding
of that report from the ordinary treatment which is accorded to docu-
ments of that character; and that too, long before this controversy
arose. Nevertheless, when the British Commissioners were in the
United States for the purpose of making their investigation, they
wished to have access to that report. It was freely thrown open to
them : — They were told ^' Look at it if you please." It was not with-
held. No demand, after the Treaty was framed and in the course of
the preparation by the respective parties of the Cases and Counter-
cases — no request — was made to the Government of the United States
for the production of that report or for furnishing a copy of it to the
other side to the end that they might incorporate it in the Case if they
pleased. If such a request as that had been made, the United States
could have said in answer to it, " Yes, we will give you the report, but
you must take it in connection with some explanatory matter which we
will furnish with it. There are reasons why this report has not been
made public, and if the report is now to be placed before the public we
wish to have also placed before the public the reasons which go to
explain it." That course was not taken. On the contrary, the agent
of Her Majesty's Government having incorporated into the British case
what purported to be some extracts from it printed in a newspaper,
and the United States in the preparartion of its Counter case being

16 ARGUMENTS ON PRELIMINARY MOTIONS.

called upon to refer to the allusion which had thus been made in the
British Case to this document, he then serves a written demand upon
the agent of the United States that he furnish him with that document
as a matter of right.

Well, what if that had been complied with? Why then the Govern-
ment of Great Britain would have succeeded in obtaining this docu-
ment, peculiar in its nature, without those explanatory circumstances
which ought to have accomiianied it, which explanatory circumstances
the United States would have had no means of placing before the Tri-
bunal. It seemed therefore to be a proper occasion to look into the
Treaty, and see what the provision relied upon for this demand was,
and whether it authorised the demand or not.

Now it seems to me, upon looking at the i)rovisions of the Treaty,
that it is quite plain that no such demand on the part of the British
Government was authorised. The provision of the 4'*^ article is this :
" If in the case submitted to the Arbitrators either party shall have
specified or alluded to any Eeport or document in its own exclusive
possession without annexing a copy, such party shall be bound, if the
other party thinks proper to a])ply for it, to furnish that party w4th a
copy thereof" That is the first provision. Well what is the object of
that"? what is the purpose of it; for when we are interpreting provi-
sions of this sort we must look to see what their object is. Why, it
seems very plain. Nothing is more common in judicial proceedings
than for one party in the course of his pleading, in making w]) his alle-
gations, or in introducing his proofs, to make a partial use of a written
instrument — not to use the whole of it, but to use a part of it — such
part of it as he supposes to favor his own contention, and he does not
tell his adversary what the rest of it is. Well naturally his adversary
says, " How do 1 know but that there may not be something in the
instrument which favors my contention, or goes to quality the infer-
ence which the party who has made use of an extract from it wishes to
draw from it"; and, therefore, the law usually furnishes a mode by
which, when a part of an instrument has so been used, the production
of the whole of it may be compelled by the adverse party. It is the
case of a partial use of an instrument. Let me again read this lan-
guage of the Treaty: "If in the case submitted to the Arbitrators
either party shall have specified or alluded to any Report or document
in its own exclusive possession, without annexing a copy, such party
shall be bound, if the other party thinks proper to apply for it, to fur-
nish, that jiarty with a copy thereof". That would enable either party,
as the members of the Tribunal will perceive, when he comes to make
up his counter case to put in the rest of the document of which his
adversary has made a partial use, in his counter case or such part of it
as he may suppose to favour his contention, and thus the whole docu-
ment, or all that is material in it, is placed before the court or tribunal.
Now the Tribunal will perceive the reason why this provision is
restricted to the instance where a party has specified or alluded to a
document in his case. It is to enable the other party to get the rest of
the document, to the end that he may put it in evidence when he comes
to make up his counter case. If the allusion is made in the counter
case there is no occasion for giving the other party the rest of the doc-
ument for he has no means then of putting it in evidence, for the prep-
aration of the counter case absolutely concludes all the means furnished
by this Treaty for the introduction of evidence before the Tribunal.

I think, therefore, it is quite plain from this explanation of the
article in question that the only instance to which it applies is where

ARGUMENTS ON PRELIMINABY MOTIONS. 17

one party has made an allusion to a document, and (if we interpret it
properly), that means where he has made a partial use of a document
in his case; in that instance the other party is entitled to a copy of
the whole upon making a due demand for it.

iSTow let me call the attention of the Gentlemen of the Tribunal to
the other provision, quite distinct in its character and designed to
answer a totally ditierent purpose. "And either party may call upon
the other, through the Arbitrators, to produce the originals or certified
copies of any papers adduced as evidence, giving in each instance
notice thereof within thirty days after delivery of the case; and the
original or copy so requested shall be delivered as soon as may be, and
within a period not exceeding forty days after receipt of notice." I
Avill not stop at this moment to comment upon the rather clumsy fram-
ing of this provision. It was taken from a somewhat corresponding
provision in the treaty which constituted the Geneva Tribunal of
Arbitration ; and if there were any attempt to really enforce it, it would
be found perhaps somewhat difficult to construeits particular terms ; but
as to its spirit and purpose, its real object and meaning, I think that is
apparent upon the face of the provision, — " either party may call upon
the other, through the Arbitrators, to produce the originals or certified
copies of any papers adduced as evidence". Now that refers to the
case where a paper is adduced in evidence — the ichole of it. In such
case the other party, as is often the case in judicial proceedings, may
have some doubt as to the authenticity of the document, — he may have
doubts about that; and, if he has, it is fair that those doubts should be
satisfied, and this provision is one for the removing of such doubts. It
is an obligation on the party who puts a paper in evidence, — the whole
of a paper, — to furnish to the other party the original or a certified copy
of it to the end that the latter may be satisfied of its authenticity. That
is the provision.

Now does this case fall within the first of the categories mentioned?
Plainly it does not. There is no pretence here that there is any allu-
sion of any nature or description by the United States to this docu-
ment in its case. That is not pretended. The allusion, if it is made
anywhere or contained anywhere, is in the counter case of the United
States ; and that is a case not provided for by the terms of the Treaty, —
not within its letter, and not, as I have endeavoured to explain to you,
within its spirit or purpose. That is the first difficulty, and it is an
insuperable one, in bringing this motion within the first clause of the
paragraph in question.

But there is another difficulty. I have said that it is not alluded to
in our Case but in our Counter Case, if at all. But we have not alluded
to it there unless when, perchance, a document is mentioned in any way
or for any purj^ose in a Counter Case, that is understood to be an " allu-
sion". Her Majesty's Government in its original Case had alluded to
this Report, and had specified and had attempted to put in evidence a
certain i)art of it; and, of course, if it was a document in the exclusive
possession of Her Majesty's Government, there would then have been a
case in which the Government of the United States might have made a
very effective demand for the production of the whole paper. Great
Britain alluded to it in her Case. Did the Government of the United
States allude to it at all? No; they commented upon this allusion to
the Report by Great Britain. They made certain criticisms in refer-
ence to that allusion. Is that making an allusion to this Rei)ort in the
sense of that Treaty by the Government of the United States? It is
very plain that it is not. All that the United States did was to com-
B S, PT XI 2

18 ARGUMENTS ON PRELIMINARY MOTIONS.

ment upon an allusion made by tbe Government of Great Britain — that
is all. If a different interpretation could be put upon the terms of the
Treaty, a party would be j)recluded from denying, qualifyino- or criticis-
ing an assertion of his adversary which contained an alhision to a
Report without subjecting himself to the obligation to produce that
Report if it was in his exclusive possession; therefore I conceive it
quite plain that it does not come within the first clause.

It does not come within the second, certainly. It has been argued
by our learned friends on the other side, that the second branch of the
clause of the treaty furnishes a means by which this Tribunal may be
supposed to be clothed with a certain general jurisdiction and authority
to compel the production of documentary, or other evidence, whenever
in its judgment it is necessary for the purpose of determining the truth.
I have no desire whatever to restrict within narrow limits the authority
of this Tribunal, but we must regard the terms of this Treaty and we
must adhere substantially to those, otherwise we shall be very speedily
at sea and without a rudder or compass. It is, we are all aware, a
common incident of ordinary municipal Courts of Justice, that they
have an incidental power over the parties to the controversies which
are brought before them, to compel such parties from time to time to
do such acts and things in the way of furnishing evidence, copies of
papers, documents and so forth, as may be supposed to be necessary
to the administration of justice in the cases before them. In such
cases the parties are private individuals. The Tribunal before which
they appear represents, and is clothed with, the sovereign power of the
State and can do with them as it pleases. That is not the case here.
This Tribunal is one specially constituted and clothed with such
powers as are specially mentioned in the Treaty, and with no others.
The parties who appear before it are not j^rivate individuals subject to
its authority; they are themselves sovereign states which cannot be
compelled. You have no sheriff or other officer at your hand that can
compel the action of the jiarties which are before you, and therefore
this suggestion that there is a general jurisdiction in this Tribunal to
order the parties to do what it may be supjiosed proper to do is one
which I conceive has no just foundation, and one which cannot be
accepted in any degree without leading us into difficulties which it
would be impossible for us to find our way out of. We must look to
the Treaty for the powers of the Tribunal, and where the powers con-
tained by the Treaty stop, the powers of this Tribunal stop also. My
conclusion from this is that we must dispose of this demand, which is
now put upon the second branch of the article, according to tlie lan-
guage of the Treaty. I have already explained what seems to me to
be its plain and manifest purjiose. It is to enable one party to call
upon the other party who has put a paper in evidence to satisfy him
as to its authenticity by producing the original. We do not fall
within that category; we have not put this Report in evidence. We
have made no allusion to it even, and therefore the United States can-
not be called ni)on under that clause of the article to produce it.

Now, I have thought it proper to state my views in relation to this,
not because of the importance of this particular paper, but because it
is important that just views should be entertained of the powers of the
Tribunal at the very outset of its deliberations. Having said that, I
entirely concur with my learned friend that it is not worth while for the
United States to withhold this paper. It is not worth while. About
its weight, its importance in this controversy, commented upon to some
extent by our learned friends on the other side, I will say nothing. If

ARGUMENTS ON PRELIMINARY MOTIONS. 19

it happens to get before this Tribunal, it will be subject to our comments
and our criticism; and we are quite pre])ared to make them. We do
not conceive it to be worth while to withhold this j^apeK, and give any
sort of occasion or foundation for a remark to be made now and repeated
hereafter, that here is some very important document full of convincing
evidence, if the United States only chose to let it come out. We prefer
to waive it, and to remove the occasion for all such discussion as that
by putting the document before this Tribunal. As to whether the Tri-
bunal has the power to look into it, that is a question for the Tribunal
itself to decide: and that question has quite extended considerations,
which I will not now anticipate, but whi{;h will be brought forward
speedily in the course of the motions which it has become the duty of
the Agent of the United States to make; and, with these observations,
I will defer any other remarks until those Motions are brought on.

The President. We ask you to put into writing the purport of your
reply, as we asked the British Government to state on i)aper their
Motion. So will you be so kind as to put on paper the substance of
your reply.

Mr. Carter. — Does the President mean by that the substance of the
argument?

The President. — ISTo, the substance of the reply.

Mr. Phelps. — That shall be done.

The President. — If you will kindly give it to us categorically, we
shall see exactly w^hat are the two contending Motions.

Sir Charles Eussell. — Sir, I should have thought that this discus-
sion might have been a much briefer one after the statement made by
my learned friend, Mr. Phelps, in his very clear argument. His posi-
tions were two. He first contended that the Agent the United States
was justified in withholding the T)roduction of this document, and uiion
grounds which would put it out of the power of this Tribunal to order
its production. That was his first position. His second position was
that he was willing to waive any objection and to allow the document
to go before the Tribunal, leaving the Tribunal to attach such weight to
it as ui)on its examination they should judge it to deserve. If the mat-
ter had rested there, I should have been quite content not to have
troubled the Tribunal with any reply at all. But my learned friends
have thought it right, and it would not be becoming in me to suggest
that therein they were wrong, to branch out into a number of collateral
topics, which I respectfully submit are not germane to the particular
point which is now before this Tribunal. But before I say a word or
two about those topics, I should like to be permitted respectfully to
observe upon a view of this position suggested by a question addressed
by one of the Tribunal to the Counsel when arguing the case of the
United States, namely, the question whether it was competent for Coun-
sel by agreement at this stage to bring in any fresh evidence. That
was the purport of the question. Now, as that question, as I conceive,
involves a mistake of fact, I wish to remind the Tribunal again how
this matter of the Eeport of Mr. H. W. Elliott in fact stands in rela-
tion to the evidence already adduced. This is not, as seems to have
been suggested or su])posed, the first introduction as evidence of the
Eeport of Mr. Elliott at all. The Eeport of Mr. Elliott is already legiti-
mately in evidence in the original Case on behalf of Her Majesty's
Government. In the Ap[>endix to that Case, — 1 have given the Tribu-
nal already the reference — Volume 3, page 53, — this Eeport is referred
to, and, therefore, is in evi<lem'e, — to use the words of the Member of
the Tribunal, is already "adduced in evidence" as part of the case on
behalf of Her Majesty's Government.

20 ARGUMENTS ON PRELIMINARY MOTIONS.

Mr. Justice Harlan. — Have you got the page of the case of the
British Government which refers to that Appendix?

Sir Charles Russell. — I do not know that there is a reference in
the case to the particular page.

Mr. Justice Harlan. — I suppose it comes in under the general evi-
dence filed with the case.

Sir Charles Russell. — In the Appendix, yes. That is the way,
Sir, in which it comes in, and on that page there is given, first of all,
what puri)orts to be a portion of a leader, a newspaper article, copied
from the journal to which 1 have referred, the Cleveland Journal; and
then follows what purports to be a part of Mr. Elliott's Report.

Mr. Carter. — Mr. Attorney, will you give me the place where, as you
say, the Report is itself put in evidence — adduced in evidence?

Sir Charles Russell. — My learned friend did not hear my answer
correctly.

Mr. Carter. — I am afraid not.

Sir Charles Russell. — There is no special reference in the case to
this any more than there is a special reference to the hundred and one
documents which are referred to here, but all of the documents in the
Appendix are put forward as proof in support of the case on behalf of
•the Queen. Now, that being so, we have a further step to shew, that
it is adduced in evidence, — imperfectly adduced because we have not
the original document, — in part produced because we have not the whole
document. It is further referred to in the British Commissioners' Report
at page 77.

Senator Morgan. — The original Report or the supplemental Report?

Sir Charles Russell. — The original Report. We have not yet got,
Sir, to the question of the supplemental Report of the British Commis-
sioners, which is a distinct subject which my learned friends on the
other side have given us notice they intend to bring before this Tribu-
nal and seek to exclude.

Senator Morgan. — I have not read that paper, and therefore I made
the enquiry.

Sir Charles Russell. — I am speaking. Sir, of the original report,
and I wish to remind the Arbitrators how this matter stood. I do not
want to antici])ate the subject of a later motion at all — that would be
irregular, but it was the view Her Majesty's Government took rightly
or wrongly ^that we shall consider hereafter) that anything which bore
upon the question of regulations ought not to form part of the original
Case on behalf of Her Majesty at all. It is enough to say that the advis-
ers of the United States "took a different view, and in obedience and in
deference to their view and expressed desire we furnished them with, as
part of our original Case, that report of the British Commissioners, and
as the Agent of the United States and as my learned friends will recol-
lect that was the subject matter of diplomatic correspondence which is
set out in the documents, the result of which, shortly, was that the
Government of the Queen standing by the view which they took of what
the Treaty contemplated, said they did not regard the Commissioners'
report as properly part of the original Case at all. The United States
insisted upon the opposite view, and in order to remove what was a
cause of friction in the preparation for coming before this Tribunal, the
Government of the Queen agreed to furnish then and there a copy of
the British Commissioners' report, which had been prepared long before;
and that was accepted by the Agent of the United States and agreed
by the Agent of the United States to be considered as part of the
original Case. We have, therefore, in that Commissioners' report,

ARGUMENTS ON PRELIMINARY MOTIONS. 21

a^nin, not one, but several, references to the report in question, Mr.
Elliott's report. And then we come to tbe Counter Case of the United
States, and I do not think, with great deference to the ability and
ingeiuiity of my learned friends, that they have made even an attempt
to answer the argument which we have founded upon their own refer-
ence in their own Counter Case to this report, because if they had con-
tented themselves with saying nothing about it, or with making a pass-
ing reference to it without challenging its authenticity, we should have
been perhaps in a somewhat different position from that in which we
now stand. But a report can be referred to for one of two iiurposes. —
It can be referred to as affirmative and positive evidence in support of
a particular view, or views. I conceive this point to be important. A
re])ort may be referred to and insisted upon for either of two purposes,
either for the i)ositive purpose, the affirmative purpose, of supporting a
particular view, or for the negative purpose of saying that that report
does not contain something that it is alleged that it does contain. It is
the latter reference, and the latter use of that re])ort, which the United
States representatives make in their Counter Case, because, not content
themselves with what my friend Mr. Carter has been pleased to call an
allusion merely to our alhision to the rejwrt, they challenge the authen-
ticity and the reliability of our statement in evidence in that report, and
say that that which we say is part of the report is not part of the report
at all ; and therefore they are relying negatively in relation to that report
upon the statement that it contains nothing of the kind which we allege
in one respect it does contain.

Therefore it seems to me that that is an additional and a strong reason
why the whole document should be referred to. Whether adduced for
the purposes of affirmative or negative proof, in either case the docu-
ment itself, when its authenticity is challenged, must and ought to be
produced.

Now so far I have been a little led to say what I should not have felt
called upon to say, because I wished to recall to the mind of each member
of the Tribunal what is the exact state of facts in relation to the refer-
ence to this report.

Now I come a little more closely to the matter. I agree most cor-
dially with one observation of my learned friend, Mr. Carter, that the
framing of this Article IV — and I think he might even have extended
his statement — is of an exceedingly clumsy character. It is not such a
document as he would have settled, I think. It is not, probably, such
a document as we should have settled; but here it is. I do not suggest,
as my learned friends seem to think I have suggested, that this Tribu-
nal can go outside the terms of this Treaty so as to take upon itself
powers and jurisdiction that the Treaty does not give it. Nothing of
the kind. No such idea is in my mind, nor did I intend to suggest any
such idea to this Tribunal; but when you come to matters which are
within the jurisdiction and authority of the Tribunal, then I say that
neither this Treaty, nor any Treaty, nor any agreement of reference that
ever was framed, does in its minute details meet with every considera-
tion that may arise; and that within the fair terms of the Treaty itself,
and within the lines of jurisdiction given by the Treaty, it is, as to mat-
ters of mere detail, and matters of mere procedure, entirely within the
competence of this Tribunal to express its opinion as to what should or
should not be done. But I do not really feel that after the statement
of my learned friend, Mr. Phelps, I am called upon very much more to
argue that matter. I cannot conceive that when the representatives of
the United States on the one hand profess their willingness to produce

22 ARGUMENTS ON PRELIMINARY MOTIONS.

the autlieutic document, whicli is already in evidence in the way that I
have pointed out, and when the counsel representing^- the Government
of the Queen join in the request for its iiroduction, there can enter into
the mind of any member of this Tribunal the least doubt as to the per-
fect authority of this Tribunal to take that document, to consider it,
and to attribute to it such weight as the document itself may properly
have attributed to it.

My learned friend, Mr. Carter, made some reference to that report,
which I would respectfully suggest to this Tribunal was a reference he
was hardly entitled to make. He says that 1 relied upon the value of
the document. I did to this extent — to this extent only. I do not know
what is in the document, but I did say that from whatever point of view
it was to be looked at, it was impossible not to attribute importance to
a document which was made by a Commissioner specially authorized by
an Act of Conoress to make the report in question upon the very subject
of seal life which enters so largely into the present controversy; and
when my learned friend, Mr. Carter, suggests hypothetical reasons why
that report has not been published, when he suggests that it may not
have been published because it may have been considered unworthy of
credit, that it may not have been published because it may not have been
thought worth publishing — if my learned friend may suggest hypotheses
of that kind, I suppose I may equally suggest a perhaps more natural
reason — that it was not published because it was not considered favor-
able to the view for which it was originally designed. But whether that
view, or my learned friends' hypotheses be the correct one is not the
point we are now considering.

Senator Morgan. — I understand that report was made sometime
before any negotiations — at least before the negotiations had taken
shape for the Treaty.

Sir Charles Russell. — I am sorry to say. Sir, that again that is an
inaccuracy in fact. I want to explain, and it is the last matter that I
desire to explain, what the exact position of events, in the order of time,
was. The controversy which has resulted in the establishment of this
Tribunal began as early as 1886-1887; was going on through 1888, 1889,
1890; and it was not until the 5th April, 1890, that Congress passed an
Act under which Mr. Commissioner Elliott was appointed to report upon
this very subject matter of seal life.

Senator Morgan. — I should like to enquire what is the date of Mr.
Elliott's report.

Sir Charles Russell. — It is somewhere between April of 1890, and
December of 1890 — between those dates.

Senator Morgan. — October, 1890.

Sir Charles Russell. — I believe the 17*'' of November, 1890, and,
therefore, I think we may well be excused for urging the desirability of
this report being forthcoming, when it was a report directed to the sub-
ject matter of this controversy; and when the enquiry preparatory to
that report was entrusted to a person as to whom the highest character
was given by those charged with most responsible positions as repre-
senting the executive government of the United States.

I do not think Sir, tliat there is anything further that I have to trouble
the Tribunal with. I have already, in my original statement, put before
the Tribunal my construction of the two clauses of Article IV, which are
in question; and I do not desire to repeat myself. As I have said, I
should not have been led into these colhiteral observations had it not
been that I have been tempted, I am afraid, to do so, by the observations
which have been made by my learned Hieuds. I am content to rest the

ARGUMENTS ON PRELIMINARY MOTIONS. 23

matter where my friend Mr. Plielps left it very early in tlie course of his
argument, namely, that the document shall be forthcoming-, that the
Tribunal shall for itself judge of its character; but I wish again emphat-
ically to say that this is not an attempt to introduce evidence not already
in the Case. The rejiort is in evidence : imperfectly referred to, I admit,
because we had not the original document; and this application, to put
it plainly and shortl}' , is simply that there shall be in its best and most
authentic form before this Tribunal that report which is already, but, I
admit, imperfectly, adduced as evidence in the case.

Mr. Phelps. — In compliance with the request of the President, I have
reduced into writing the reply of the United States to this Motion, a
copy of which will be furnished to the Secretary before the adjournment
of the Court. With the permission of the Tribunal, I will read it. —
" The United States Government denies that Her Majesty's Government
is entitled, under the provisions of the Treaty, to any order by the Tri-
bunal for the production of the document specified in the motion, as a
matter of right. The United States Government, however, is willing
to waive (so far as it is concerned) its right of objection, and to furnish
to the Agent of Her Majesty's Government a copy of the document
referred to, for such use as evidence as the Tribunal may deem proper
to allow. Not conceding, however, in so doing, that either party at this
or any subsequent stage of the proceedings has a right to introduce any
further evidence whatever, upon any subject whatever, connected with
the controversy. And further stipulating that if the document referred
to in this motion shall be used in evidence at all, it shall be open to the
use of both parties equally in all its points."

Sir Charles Russell. — Oh ! clearly, that follows.

The Tribunal then adjourned for a short time.

Sir Charles Russell. — Perhaps, as the Counsel for the United
States have read their answer to the motion, I ought to read to the
Tribunal the form of the order which I propose the Tribunal shall make.

The President. — Will you be kind enough to read it?

Sir Charles Russell.— Yes, Sir. "That the Agent of the United
States be called upon by the Tribunal to produce the original, or a cer-
tified copy, of the Report made by Henry W. Elliott on the subject of
fur-seals, X)ursuant to Act of Congress 1890".

Mr. Justice Harlan. — You had better give the date of the report, if
you can, in that motion.

Sir Richard Webster.— The 17th of November 1890.

Sir Charles Russell. — We are not sure that is the date, however.

Lord Hannen. — Sir Charles, is that the form of the order which you
asked for?

Sir Charles Russell. — That is the form of order which I at present
ask for.

Lord Hannen. — Precisely; I thought so.

Mr. Phelps. — We did not understand, Mr. President, that this
motion would be the subject of any order by the Tribunal upon the
party to produce this document. We understood that we produced it
by consent and furnished it to the Agent of Her Britannic Majesty's
Government, and that the Tribunal would make such order in respect
to its reception as it might deem proper. To produce this under an
order of the Tribunal would carry the idea that they were entitled to
an order for the i)roduction of the document, which we do not concede,
by any means.

Sir Charles Russell.— The matter stands in this way, if I may say
so ; We respectfully call for the order. My learned friend answers that

24 AEGUMENTS ON PRELIMINARY MOTIONS.

by saying: "We say the Tribunal has no authority to make the order,
but we waive any objection of that kind and x>roduee it." We are
merely fighting about words, 1 think, and not about substance.

The President. — Practically both parties are agreed; and the Tri-
bunal in consequence directs that the document be regarded a» before
the Tribunal, to be made such use of as the Tribunal shall see fit.

Mr. Phelps. — Yes.

Mr. Foster. — Mr. President and Gentlemen of the Tribunal, I desire
to submit the following motions, which I understand, by consent of
counsel, are to be considered together. I will read them first for the
information of the Tribunal and of Counsel:

The Af]ceQt of the United States desires to bring to the attention of the Tribunal of
Arbitration.

Sir Charles Eussell. — I beg pardon, a moment; but I would
respectfully suggest as a matter of the order of procedure. — I am sure
that Mr. Foster will not understand that I make any personal objec-
tion — that this matter is in the hands of Counsel and it is Counsel who
make motions. My learned friends, Mr. Phelps and Mr. Carter, are, I
submit, the persons to bring this matter under the notice of the Tri-
bunal.

The President. — We believe that is a matter to be decided between
the Ageuis themselves, and their Counsel. Have not the Agents
agreed upon the mode of proceeding before the Tribunal? You know
you both represent your Governments.

Mr. TUPPER. — There has been, so far as I am concerned, Mr. Presi-
dent, no understanding or agreement on that point; but I took it for
granted that as I ai>pear here to obey the orders of the Tribunal and
represent Her Britannic Majesty as Agent, and appear with Counsel,
that the argument of all questions coming to the attention of the Tri-
bunal should be in the hands of Counsel; and with that I was person-
ally most content. I supposed, of course, that the Agent of the other
side occupied a similar position.

The President. — You know the official representatives of both Gov-
ernments are their Agents; the Tribunal knows no other ofQcial repre-
sentatives but the Agents. The Counsel act as Counsel of the Govern-
ment with the Agents. But you must agree between yourselves how you
wish to proceed.

Mr. Phelps. — General Foster was only about to read the motions.
He was not intending to address the Tribunal in support of theuK

Mr. Foster. — Mr. President, before you announce your decision I
desire to make a statement. I fully coni-ur with the President of the
Tribunal as to my duties. I appear here to present a motion on behalf
of the Government of the United States. When I have presented that
motion, it will be the pleasure of the counsel of the United States to
argue that motion. In the proper discharge of my duty, I rise for the
purpose of reading and laying before this Tribunal a motion.

The President. — I must ask you whether you protest against that
mode of proceeding? (Addressing British Counsel).

Sir Charles Russell. — No, sir; I do not wish to do that at all. I
merely interposed because I thought Mr. Foster was under the iinpres-
sion that he thought it was necessary he should introduce it in this way,
and we did not conceive it to be so. The matter is in the hands of
Counsel who are by the fifth article orally to conduct the argument.
This is really part of the argument in support of a particular motion.

ARGUMENTS ON PRELIMINARY MOTIONS. 25

The President. — We will not recofjnize the Agents as arg^ninjy the
matter. We recognize them as iei)resenting tlie Goveinmeut. Coun-
sel will argue the matter and we will dispose of it.

Sir Charles Russell. — We have no objection to that.

Mr. Foster. — I proceed:

The Agent of the United States desires to bring to the attention of the Tribunal
of Arbitration tlie fact tliat he has been informed by the Agent of Her Britannic
Majesty, in a note dated March 25th ultimo, that he has sent to each of the members
of the Tribunal copies in duplicate of the Supplementary Report of the British Com-
missiouers appointed to inquire into seal life in Behring Sea.

The Agent of the United States, in view of this information, moves this Honor-
able Triliunal that the document referred to be dismissed from consideration, and be
returned to Her Majesty's Agent on the ground that it is submitted at a time and in
a manner not allowed by the Treaty.

I follow that with a second motion for the information of the Tribunal :

The Agent of the United States moves this Honorable Tribunal to dismiss from the
Arbitration so much of the demaiid of the Government of Great Britain as relates to
the sum stated upon page 315 of the Counter Case of said Government to have been
incurred on account of expenses in connection with proceedings before the Supreme
Court of the United States;

And, also, to dismiss from the Arbitration the claim and request of the same Gov-
ernment, mentioned on said page 315, that the Arbitrators find what catch or catches
might have been taken by pelagic sealers in Behring Sea without undue diminution
of the seal herd during the penilency of this Arbitration;

And, further, to dismiss from the Arbitration the claim of the same Government,
mentioned on the said page 315, to show payments by it to the Canadian owners of
sealing vessels;

And that all ])roof8 or evidence relating to the foregoing claims or matters, or either
of them, be stricken from the British CounterCase, and in particular those found on
pages 215 to 229 inclusive, of Volume II of the Api)endix to said Counter Case.

'I'he ground of the foregoing motion or motions is that the claims and matters afore-
said are, and each of them is, jiresented for the tirst time in the Counter Case of the
Government of Great Britain, and that they are not, nor is either of them, pertinent
or relevant b}^ way of reply to the Case of the United States, or to anything con-
tained therein, except so far as the same may tend to support claims for danuiges dis-
tinctly made in the original Case of the Government of Great Britain, and that so far
as they come under that head the matters are irregular as being cumulative only.

I have copies of these motions sufficient to supply the Arbitrators and
Counsel of the British Government. I will place them in the hands of
the Secretary.

The President. — The Tribunal will be ready to hear the first motion
of the United States immediately argued; but the Tribunal must reserve
for a later stage of the proceedings the argument upon the second
motion, which we do not consider as relevant in the present stage of
our proceedings. If the Counsel of the United States wish to s])eak
upon the first motion, we will ask you to restrict your argument to this
first motion. I mean the motion which relates to the Supplementary
Report presented by the British Government.

Mr. Phelps.— The reading. Sir, of the motion to which the President
has just alluded, and to which, of course, with great deference to the
intimation of the Tribunal, I shall at this time confine myself, has dis-
closed to the Tribunal that it is in itself a motion of very considerable
importance, and that it is of still greater importance in the effect of the
questions to which it gives rise upon other evidence and other parts of
the Case that will be found to be extremely material.

Since the last meeting of the Tribunal, when the written arguments
were submitted, and when the case, so far as the hearing of it is con-
cerned, would have been at an end, if the counsel on either side had not
desired an oral argument, or if the Tribunal had not directed it, because,
as the Tribunal has perceived, the oial argument is not required by the
Treaty J it is a privilege accorded to the counsel on either side; it is a

26 ARGUMENTS ON PRELIMINARY MOTIONS.

right reserved to the Tribunal to direct it, if in their judgment it should
become material. Since then, the Case, so far as the requirements of
the Treaty are concerned, was completed, and would have been finally
submitted, the Agent of Her Britannic Majesty's Government has laid
before the Arbitrators, and furnished to us, a printed copy of a new
docum«nt, which we have not examined, purporting to be a supple-
mental report of the Commissioners appointed on the part of Great
Britain under the provisions of this Treaty. I cannot doubt that this
step was taken under the advice of my friends upon the other side, in
the belief that it was in the exercise of a right. The existence of such
a right is the serious question which this motion presents.

In the first place. I desire to call your attention to the provision in
the Treaty under which the report of these Commissioners comes at any
time or in any event before the Tribunal. It is to be found in Article
IX. I may usefully read the whole article:

The High Contracting Parties have agreed to appoint two Commissioners on the
part of each (Tovernuient to malve tlie joint investigation and report contemplated
in the preceding Article VII, and to include the terms of said agreement in the
present Convention, to the end that the joint and several reports and recommenda-
tions of said Commissioners may he in due form snbmitted to the Arhitrators, should
the contingency therefor arise, the said agreement, is accordingly herein included,
as follows:

Each Government ahall appoint two Commissioners to investigate conjointly with
the Commissioners of the other Government all the facts having relation to seal life
in Kehrings Sea, and the measures necessary for its proper protection and preser-
vation.

The four Commissioners shall, so far as they may he ahle to agree, make a joint
report to each of the two Governments, and they shall also report, either jointly or
severally, to each Government on any points upon which they may he unable to
agree.

These reports shall not be made public until they shall be submitted to the Arbi-
trators, or XX it shall appear that the contingency of their being used by the Arbi-
trators cannot arise.

I will now read Section 7 of the Treaty referred to in Article IX :

If the determination of the foregoing questions

the five questions propounded in the i)receding Article.

If the determination of the foregoing questions as to the exclusive jurisdiction of
the United States shall leave the subject in such position that the concurrence of
Great Britain is necessary to the establisbment of Regulations for the proper pro-
tection and preservation of the fur-seal in, or habitually resorting to, the Behring's
Sea, the Arbitrators shall then determine what concurrent Regulations outside the
jurisdictional limits of the respective Governments are necessary, and over what
waters such Regulations should extend ; and to aid them in that determination the
report of a Joint Commission to be appointed by the respective Governments shall
be laid before them, with such other evidence as either Government may submit.

It will be perceived that the Treaty provides, in the first place, for
the appointment of a Joint Commission, in the hope — 1 am justified in
saying certainly, so far as the Government of the United States is con-
cerned, and I doubt not, so far as Her Majesty's Government is
concerned — in the hope and confident belief that such a conclusion
would be reached by that Commission as should obviate the necessity
of any further controversy, negotiation or arbitration. If the Commis-
sioners had been fortunate enough to agree, such would unquestionably
have been the result; but it is provided — and we shall have occasion
in tlie course of this discussion to point out how these provisions origi-
nated in the negotiation, — I am dealing with them now only as they
find place in the Treaty — it was provided that if this Commission should
fail to agree upon such Regulations as the Government should be will-
ing to adopt, then the Arbitration which is now in progress became
necessary, which otherwise never would liave taken place; and in that

ARGUMENTS ON PRELIMINARY MOTIONS. 27

event, one of the questions to be submitted to the Tribunal, in the con-
tingency that certain questions, certain claims of right on the part of
the United States Government should not be supported, was what
Eegulations should be prescribed by this Tribunal for the concurrence
of the two Governments, for the object which both had in view in all
these negotiations, in all these proceedings, from beginning to end —
the protection and preservation of the seal race in the Behring Sea
and the North Pacific.

Now, tlie reports tlius provided to be laid before the Tribunal if that
question should engage their attention, are made evidence. They are
made evidence irrespective of the character of their contents. It ie
beyond question that whatever these Commissioners chose to embody
in the report, their opinions, their information, their conjectures — all
become evidence for what they may be thought to be worth in the
estimation of the Tribunal, but not to be rejected. It is not open to
either party to say in respect to the contents of these reports, " This
passage is hearsay; that is conjecture; the third is opinion; the fourth
is vague and general information, and therefore it does not constitute
legal evidence, and must be discarded in the consideration of the case ".
We cannot say that, because the Treaty which provides for the appoint-
ment of these Commissioners, which provides to them certain oppor-
tunities for informing themselves makes their report evidence; not
conclusive evidence, not in all parts of it equally forcible evidence, but
evidence that is to be admitted.

It will be perceived, therefore, that the evidence afforded by the
reports of these Commissioners on both sides — and these observations
apply equally to both sides — have an unusual character; that is to say,
much of their contents, which if it were undertaken to be put into the
Case through the mouth of any other witness might be properly objected
to as not evidence, is made evidence here. And it will be seen, further-
more, that unquestionably it was the expectation of the Treaty that
the reports of the Commissioners on both sides would engage the
serious consideration of the Tribunal. It is made not only evidence to
a larger extent than other evidence could be; it is placed upon some-
what a higher plane than any other evidence would be, so far as the
authors of it are concerned.

Now these Commissioners failed to agree, except to a limited extent,
there was a Joint Report to a small, but in our judgnieut, to a very
important, extent, which was laid before the Governments, and has
already undoubtedly attracted the attention of the members of the
Tribunal. But on many points of great importance they failed to
agree; and the consequence was that under the provision of the
Treaty, separate reports were made by the British Commissioners to
their Government, and by the American Commissioners to theirs; and
those reports have found their way, properly enough, into the Case, and
they are already before the Tribunal for such consideration as they may
be thought to be entitled to.

After this Case is closed, after all the successive steps which the
Treaty provided for have been taken, after the Case and the Counter
Case and the written argument have all been submitted; after the
Case has come to an end, except so far as the decision and award of
the Tribunal is concerned, unless one or more of the parties, or the
Tribunal itself should avail of the right under the Treaty to have an
oral argument, we are presented with a printed volume, purporting to
be, as of course it is, a supplemental report of the British Comtnis-
sioners. Now, what is that? As I have said, we have declined to

28 AEGUMENTS ON PRELIMINARY MOTIONS.

examine it or to receive it. I cannot speak of its contents, therefore, in
particular. It is a body, unquestionably, of fa(tts, statements, allega-
tions and matter which becomes evidence; which the Tribunal must
treat, if they receive it at all, as evidence; which may be, and we are
bound to presume if our learned friends care to put it in at this stage,
is very important evidence. It may be, for all we know, the evidence
that ma> determine the conflicting points in this case. It may be the
evidence that shall bring you to a conclusion upon this, that and the
other important question in disj)ute; the uew evidence contained in
the sui)i)lenientary report may settle these questions and bring us to a
decision that, without it, we should not have.

Now then, what is the exact proposal? Without yet looking into
the letter or the spirit of this Treaty, what is the exact proposal that
is involved by the offer of this evidence at this time? It is that there
shall be put into the case, not only subject to the consideration of the
Tribunal, but commended by the terms of the Treaty to the especial
consideration of the Tribunal, a new and important body of testimony,
similar, I presume we have a right to suppose, to their jjrevious report.
Can we reply to iti? Can we contradict it, exjdain it, imi)each it,
modify it? The door is absolutely closed. It is not in the power of the
Tribunal to permit any such reply. It is not in our power to make it,
if the Tribunal should undertake to give us the opportunity.

The evidence upon this subject is at the ends of the earth. It is in
Alaska and British Columbia and California and Asia. It is all over
the world. It is utterly impossible for us to attempt at this day to
introduce any evidence in reply to this document; and it is equally
impossible for the Tribunal, who are called upon by the Treaty, if pos-
sible, to determine this Case within three months from the time of its
submission, to afford us the opportunity.

The result is that if our learned friends are right in supposing that
they are entitled to put in this evidence at this time, a mass of evidence
goes into the Case without the ])0ssibility of reply, presumably of the
highest importance. Now, I shall be glad to know if in the proceedings
of any tribunal that ever sat judicially for any purpose, since the princi-
ples of justice came to be known, any such proceeding was permitted,
as that a party shall have his cause decided upon the determination of
a question of fact, based upon evidence that he never saw and never
had an opportunity to reply to? Is it possible to carry this question
another step unless it is found that the Government of the United States
has been foolish enough to have brought itself by a distinct agreement
into such an extraordinary position as that? An arbitration to settle
facts that are in grave dispute, and must be determined upon evidence.
On what evidence? Evidence ex parte, evidence that the party against
whom it was produced was never confronted with and never had an
opportunity to answer, evidence that, so far as the Tribunal knows,
may be true or may be subject to complete contradiction.

Now, let us look at the provisions of this Treaty and see upon what
ground it has been claimed by the learned Counsel or may possibly be
claimed by any Counsel, that this state of things shall be brought to
pass. It will be seen in the first place, that so far from this Treaty in
any of its parts, or in any of the si)irit that is to be derived from any of
its parts, contemplating such a result, or leaving it open to infer-
ence that there may be such a result, it is sedulously excluded. It is
provided in the 3""^ Article. " The printed Case of each of the two par-
ties, accompanied by the documents, the ofihcial correspondence, and
other evidence on which each relies, shall be delivered in duplicate to

ARGUMENTS ON PRELIMINARY MOTIONS. 29

each of the Arbitrators and to the Agent of the other party as soon as
may be after the appointment of the members of the Tribunal, but within
a period not exceeding four months from the date of the exchange of the
ratifications of this Treaty ". That is the first step, that as soon as pos-
sible, and not later than four months from the ratification of the Treaty,
the Case, the documents, the allegations, the proofs which each party
relies upon shall be not merely laid before the Arbitrators but shall be
furnished to the other party.

Senator Morgan. — " Printed".

Mr. Phelps. — Printed, and laid before the other party. For what
purpose? To give the other party that opi)ortunity of reply without
which no administration of justice can take place, or ever undertook to
take place. That is what it is for. The next. Article 4, i^rovides that
" Within three months after the delivery on both sides of the printed
Case, either party may, in like manner, deliver in duplicate to each of
the said Arbitrators, and to the Agent of the other party, a Counter
Case, and additional documents^ correspondence, and evidence, in reply
to the Case, documents, correspondence, and evidence so presented by
the other party ". There is the opportunity on each side for a complete
reply to the evidence contained in the printed Case i)reviously delivered.
Then it is provided in the next clause, — I need not read it in extenso —
that if either party finds that time too short to complete his reply, he
may give notice within a certain time, and an additional period of sixty
days beyond the three mouths is allowed him. So sedulous is the
Treaty in respect to giving this complete opportunity of reply, that, in
addition to the three months allowed primarily, it is at the option of
either party to require two months longer.

Then follows the provision that was under discussion this morning,
by which it was carefully provided that, if any documents were alluded
to or specified on either side in support of their case, on demand of the
other side they should be forthcoming, and that if any document was
put in evidence, the other side might demand a sight of the original or
a certified copy if he questioned its authenticity. And I am reminded
that in pursuance of this provision. Her Majesty's Government did ask
for the extension of sixty days for the completion of their Counter Case
which was, of course, accorded. It was a matter of right. Then Arti-
cle 5: "It shall be the duty of the Agent of each party, within one
month after the expiration of the time limited for delivery of the Counter
Case on both sides, to deliver in duplicate to each of the said Aibitra-
tors and to the Agent of the other party a printed argument shewing
the points and relerring to the evidence upon which his Government
relies. Either party may also support the same before the Arbitrators
by oral argument of Counsel ; and the Arbitrators may, if they desire
further elu(;idation with regard to any point, require a written or
printed statement or argument, or oral argument by Counsel, upon it."
Those are the successive steps by which the case is to be brought
before the Tribunal; first by the Case, second, by the Counter case or
reply, third, by the written argument, fourth, -if it is desired by the
parties or the Tribunal, by the oral argument.

Now let me remark again, as I had occasion to remark this morning,
there is no line in this Treaty which professes to confer upon the Tri-
bunal any authority over this system of procedure except to enforce it
as it reads. It is not allowed to the Tribunal to say that, though the
Case is required to be tiled within tour months, it may be filed within
six. It is not allowed to the Tribunal to say that the Countei' Case, if
not filed within five months, may be filed in seven, or that the writteji

30 ARGUMENTS ON PRELIMINARY MOTIONS

argument provided for may be furnished two or three months after the
Case. All that discretion, as everybody knows, does attend the juris-
diction of any established judicial Tribunal having- general judicial
powers. But in this case these two countries having constituted a
special Tribunal for the decision of this S])ecial Case alone, have thought
proper to not merely constitute the Tribunal, but to define and limit
and prescribe with the utmost particularity all the steps of its procedure.

Then, recurring to Article 7, it has been said on tlie i)art of Her
Majesty's Government, because as we shall see, this subject has been
the occasion of correspondence, it has been assumed that the question
of regulations submitted to the Tribunal was not to be taken up or
entered upon until the hearing upon the j>revious questions in the Case
had been completed and the decision of the Arbitrators announced;
that is to say, that the Treaty provides for special separate arbitrations
by the same Tribunal. That the Case is to be completed, argued and
submitted upon the five previous questions, that a decision is to be
reached and an award is to be made, and then if that award should be
one way, that a new hearing upon new evidence, upon new argument
was to take place on question six. Well, passing for this moment, the
question whether there should be a separate hearing, which we alto-
gether deny as a construction of the Treaty, the enquiry is, upon what
evidence are you to enter upon the question of the Kegulatious, if you
ever do enter upon it — not at what time, not upon what oral argument,
but upon what evidence are you to enter upon a question which depends
exclusively upon evidence and proof"?

Other questions in this case involve important considerations of law,
and some of them possibly are purely questions of law. The question
of Regulations, if the Tribunal should ever reach the determination of
it, is purely a question of evidence submitted to a Tribunal who are not
chosen for their familiarity with the facts upon which it depends, who
from the very nature of their high position and employment must be
absolutely ignorant on the whole subject till they are enlightened by
evidence. What Member of the Tribunal, what gentleman who could
even have been thought of as a proper Member of it is exi^ected to
understand the business of seal life and seal killing and seal breeding,
and all its incidents that now encumber this case to such an extent that
one can never be sure that he has mastered it?

"The Arbitrators shall then determine what concurrent Eegulations
outside the jurisdictional limits of the respective Governments are nec-
essary, and over what waters such Regulations should extend, and to aid
them in that determination the report of a Joint Commission to be
appointed by the respective Governments shall be laid before them, with
such other evidence as either Government may submit." What other
evidence! How taken? When? How replied to? How brought before
the Tribunal? The Treaty is absolutely silent, unless it is the evidence
which in the Articles I have already read is provided for, to be set forth
in the Case and the Counter case, and to be dealt with in the Argument.
While the Tribunal is" invested with no power to take testimony, or to
order the taking of testimony, or to fix a limit of time within which it
should be taken, or the manner in which it should be made known to
the other side — while there is absolutely no suggestion of such a provi-
sion, nor the conferring of any general jurisdiction that would include
it, still it is spoken of as "such other evidence". Why it is the irre-
sistible concluvsion from the reading of this Treaty, taking it upon those
common rules of construction that regard in the first place the object in
view, and secondly, the context of the whole instrument and not detached

ARGUMENTS ON PRELIMINARY MOTIONS. 31

words wliich standing by themselves may be consistent or inconsistent
with one construction or the other. If the words are not decisive in
their meaning, if they are not conchisive, if they are open to interpre-
tation the resort is to the context of the Treaty, and the object and
situation of the parties, as throwing the best light upon the meaning of
the terms.

Therefore passing altogether the question of when the Tribunal is to
hear argument upon this question, what evidence are they to consider
when they do undertake to determine it. That is made perfectly clear
when we iind that no evidence can come before it in any way that the
Treaty provides or in any way that the Treaty authorises the Tribunal
to provide, except in the Case and the Counter Case. That is so care-
fully, so sedulously provided, in order to secure to both parties the right
of putting in all their evidence and the right of replying to all the evi-
dence that is introduced on the otlier side. It is said however, that
under the peculiar wording of article nine there is further encourage-
ment to be found for the suggestion that other evidence may be sub-
mitted, at least so far as the reports of the Commissioners are concerned.
These reports, says the Treaty, shall not be submitted to the Arbitra-
tors if it shall be found that the contingency of their being used by the
Arbitrators cannot arise. It is said that this contingency is the con-
tingency of the decision; that it is the contingency whether the Arbi-
trators shall decide in favor of or against the claims of right which the
United States Government have set up. We regard that construction
as altogether erroneous. It is the contingency of the Arbitration itself —
the contingency of there being any Arbitration, not the contingency of
the decision on the previous question that the Arbitration shall reach,
if it takes place.

Before, however, I proceed with what I had begun to say on the sub-
ject of the term "contingency " in the ninth article, I should have drawn
the attention of the Tribunal to the history of the language of article
seven, which I have been previously considering. With your permis-
sion, I will recur to that subject for a moment, long enough to point out
how this language came to be employed. The Treaty, as I need not say
to any judicial eye that has perused it, is a piece of patchwork. It has
been reached in the process of a long negotiation, here a little, and tliere
a little — noic a provision then a provision, and most unfortunately it was
not submitted, after all these pieces of patchwork were brought together,
to the revision of such a legal mind as would have tried to make its lan-
guage consistent with its sjurit. It is idle to deny that the document
is full of expressions, each of which taken by itself would be found to be
altogether inconsistent with something else.

We are required for instance to furnish a written Argument within
thirty days after the Counter Case is filed; but the Treaty requires that
in twenty days the Arbitrators shall assemble and "immediately" enter
on the decision of the Case. The written argument then comes in ten
days after the Tribunal have decided the case. That is only an illus-
tration.

Mr. Justice Harlan. — It is not " decide", but, "proceed to examine".

Lord Hannen. — And "consider it." No one could have been so san-
guine to imagine it could be decided immediately.

Mr. Phelps. — It is to be presumed that a Tribunal of such distin-
guished members as this would not have considered this case for ten
days without forming some opinion upon it.

Senator Morgan. — We miglit have spent that much time in the ques-
tion of what our powers are, might we not?

32 ARGUMENTS ON PRELIMINARY MOTIONS.

Mr. Phelps. — Well, Sir, that is not for me to say, but no doubt some
time may be usefully spent on that point. What I was about to remark
in regard to Section 7 is this — that it was originally proposed by the
United States in very different language. In the first volume of the
Appendix to the United States Case, at page 28G, the Tribunal will find
the first draft of article 6, which is very difierent from the langnage that
appears in the Treaty. I need not stop to read it. It is enough to
remark, as it is in print before you, that it is a totally different Article
from the one that is now in the Treaty. It was objected to by Great
Britain, and upon what ground? Solely upon the gronnd tliat Her
Majescy's Government was sedulously anxious (you will find that in
the letter of Lord Salisbury to Sir Julian Pauncefote of February the
2P*, 1891, which is in the same volume at page 294) in framing this
Treaty, to separate the question of Kegulations from the claim of right.

The position of Her Majesty's Government was, that to regulations —
which are not a matter of right — but are for the discretion of the Tribu-
nal — the concurrence of Great Britain is necessary, and though the
Tribunal has i^ower to prescribe that the concurrence shall take place,
yet at this hearing the question of right on the part of the Government
to make its own liegulations, and the regulations to be prescribed by
arbitration, if it has no such right, should not be considered together.
It was in reply to that, as the correspondence shows, if you will turn to
that, the letter at page 310 of the same volume from Mr. Wharton to Sir
Julian Pauncefote of the 25th of June, 1891, was written. He quotes
Loid Salisbury's objection to the letter to which I have previously
referred in these words: "In the note of Lord Salisbury of the 21st of
February last," — the letter I last referred to, "he states his objection
to the sixth pro])osition, as presented in the letter of Mr. Blaine of
December 17th, 1890, in the following words.

"The sixth question, which deals with the issues that will arise in case
the controversy should be decided in favour of Great Britain, would, per-
haps, more fitly form the substance of a separate reference". That letter
I may observe, was the first and last allusion in all this protracted cor-
respondence to the idea of making the question of Regulations a sepa-
rate reference. " Her Majesty's Government have no objection to refer-
ring the general question ", he proceeds to say — "to referring the general
question of a closed time to arbitration, or to ascertain by that means
how far the enactment of such a provision is necessary for the f>reser-
vation of the seal species ; but such reference ought not to contain words
appearing to attribute sjiecial and abnormal rights in the matter to the
United States". And the previous draft that I have referred you to on
page 286 was open to that objection. It was so drawn that it appeared
to confer upon the Tribunal the power to prescribe Regulations which
presupposed rights of jurisdiction on the part of the United States.
So that if Regulations had been so prescribed by the Arbitration, it
might not have been clear whether they proceeded on the ground that
they were Regulations which the United States had a right themselves
to prescribe in the exercise of an existing jurisdiction, or whether in the
absence of any such jurisdiction they were regulations such as the Tri-
bunal thought, by the concurrence of the I^Tations, ought to be adopted.

Senator Morgan. — Do you mean jurisdiction within Behring Sea?

Mr. Phelp.s. — I do not remember at this moment the api)lication of
the language to that suggestion, whether it was to Behring Sea alone,
or to the North Pacific, but we shall claim, when we come to the discus-
sion of that subject, that the Arbitration refers to all the waters which
the seals frequenting Behring Sea habitually resorted to.

ARGUMENTS ON PRELIMINARY MOTIONS. 33

Senator Morgan. — That was introduced into the negotiation later.

Mr. Phelps. — Yes. Mr. Wharton on the part of the United States
proceeds as follows: — "I am now directed by the President to submit
the following-, which he thinks avoids the objection urged by Lord Salis-
bury". Then he submits the draft which is now found in the Treaty.

Senator jMobgan. — Would you allow me to ask, if it does not inter-
rupt you, what was the date of the submission of that draft?

Mr. Phelps.— That letter is dated the 25tb June, 1<S91. Tbe letter
of Lord Salisbury stating this objection is dated February 21st; there
was intermediate correspondence, of course, but tlie decisive reply
which met the point of the letter of February 21st did not come till
June 25th, and then it was satisfactory to Her Majesty's Government,
and the Article was i)ut into the Treaty in the language Mr. Wliarton
proposed.

Senator Morgan. — After four montlis' consideration.

Mr. Phelps. — Perhaps it was rather more, but, at all events, four
months' consideration.

This review of the language of that Article will show that there is no
particular significance to be attached to these words " further evidence" ;
that they are, so far as that section is concerned, what might almost be
called accidental words, referring to a subject which it was not the pur-
pose of that section to deal with — referring to another section in the
Treaty. Therefore, we must go to the other section in the Treaty to find
what the "further evidence" means, and then we are brought to the
conclusion which I expressed before, that it can have no meaning except
the meaning that it necessarily implies — the evidence which the Treaty
otherwise provided for.

Senator Morgan. — Where are those words "further evidence"?

Mr. Phelps. — In the 7th Article.

Lord Hannen. — No, it is "Other evidence".

Senator Morgan. — Yes.

Mr. Phelps. — Yes, it should be "other". It leaves this singular
alternative. If the "other evidence" means the evidence provided for
by the Treaty, and embodied in the Case and Counter case, theu it is all
intelligible and plain ; but if it does not mean that, it provides or rather
it contemplates, I should not say that it provides, because there is no
provision, the submission to the Arbitration of evidence, the taking of
which, the presentation to the other side of which — the argument of
which — is not provided for at all; and without investing the Tribunal,
I repeat, with any power of meeting that emergency as a Court of Chan-
cery might meet it, who could say that such a time should be allowed
to the Complainant to take his testimony, and such a time to the
Defendant to answer it, and then such a time to the Comi)lainaut to
reply. There is no such provision as that, and we are brought to the
alternative which is impossible here, because there is a justice of proce-
dure as well as a justice of judgment, and there can he no justice of
judgment unless it is founded upon justice of procedure. There can b«
no such thing as a just judgment which is founded upon evidence with
which the other party has never been confronted.

Now, Sir, I recur to what I had begun to say on the subject of the
word "contingency" in the ninth article, because we have been ajjprised
in previous correspondence of the ground upon which the proposal to
give this evidence is intended to be supported. The reports it is said
shall not be made public till submitted to the Arbitrators, or until it
shall appear that the contingency of their being used by the Arbitrators
cannot arise. In the first place, that has reference merely to the pub-
B s, PT XI- — 3

34 ARGUMENTS ON PRELIMINARY MOTIONS.

lication of the reports; but still it is useful to see what the term "con-
tingency" means there, that is to say, what it refers to. Does it refer,
as my learned friends will contend, to the contingency of tlie Tribunal
deciding against the United States on the Ave questions that are first
propounded, or does it refer to the contingency of there being any arbi-
tration at all? There again we are enlightened by referring to the
correspondence. When we look into the history of that Article which
was likewise the ''child of travail", when we see how that article came
to pass in the form which it has assumed, we see what that contingency
means. The original theory or desire of both these Governments, I
repeat, was that this Commission would settle the dispute; that if they
went to the islands — if experts selected for the purpose examined the
subject exhaustively — more exhaustively than you can examine it on
evidence, that they would be sure to agree, inasmuch as they started
with a common object.

That was the view of the Governments; but whether all the Commis-
sioners acted with that intent or not, is a very diiierent question, which
will engage your attention at a later stage of this hearing. That the
Governments started with the idea on both sides that this valuable ani-
mal should be preserved, in this its last resort on earth, from extermina-
tion as a common interest they have made plain in various ways. Why
it was that they did not succeed will be the subject of discussion before
we cease to trouble you with the consideration of this Case. It is
immaterial now. These two provisions that are now embodied in the
same Treaty were originally separated.

Great Britain for a long time, (I cannot detain you to wade through
all this correspondence, but if you should care enough about this point
to run through it, you will perceive that it supports what I say, and I
think that my learned friends on the other side will not question it,)
Great Britain for a long time was pressing the proposal of this Joint
Commission. It Was not received by the United States with favor in
the first place, but still it was pressed with diligence and ability by the
British Government, and finally the United States gave way, and two
Agreements were made, (one for the joint Commission) which are now
embodied principally in article 9 of the Treaty of Arbitration. If the
Commissioners agreed, there would be no occasion for any Arbitration.

Lord Hannen. — Where is that embodied in the Treaty? Is that
anywhere embodied in the Treaty that, if the commissioners agreed the
Arbitration would not go on ?

Mr. Phelps. — Ko, your Lordship, it is not. I am referring to the
diplomatic correspondence, which, upon the reference I shall endeavor
to give will shew very plainly that the Government hoped and expected
that the Commissioners appointed would settle this dispute; if they
failed to settle it then it was to be referred to arbitration. If they set-
tled it, the questions of right, as the Government then regarded the
Case, became immaterial, as all that the Government of the United
States wanted was the preservation of the seal. They did not care to
have a decision upon an abstract question of immaterial rights. It is
the interest of no nation to challenge decisions such as that.

I shall have occasion, when the report comes to be considered, to
enlarge ujion these points; all that I am upon now is the question what
does the term ''contingency" refer to in the ninth Article? I say that
the previous correspondence shows that it refers to the contingency of
any Arbitration being necessary at all, not to the contingency of what
decision the Arbitrators should make if they made any.

ARGUMENTS ON PRELIMINARY MOTIONS. 35

I refer to the letter of Sir Julian Paiiiicefote to Mr. Blaine of April
tlie 29"^, 1890. Mr. Blaine had become Secretary of the United States,
and the correspondence is contained in the S'** volume of the Appendix
of the British Case. As late as that date Sir Julian Pauncefote, in an
elaborate letter to Mr. Blaine, encloses a proposed Treaty. He encloses
the entire draft of the Treaty which, as he thought, embodied the views
of the two Governments as they existed at that time, and which he
seems in his letter confidently to have anticipated would have been
accepted by the American Government. It was not accepted, but not
upon any difficulty about the point I am now talking about; whoever
will take the trouble to go through the pages will see that the draft then
submitted by Sir Julian Pauuc-^lOte which is a very elaborate draft from
Lord Salisbury founded the objection not on this point but others; and,
as illustrating what the Governments were then trying to accomplish, his
Treaty contains these points. This is the first Article : "The High Con-
tracting Parties agree to appoint a mixed Commission of Experts who
shall enquire fully into the subject and report to the High Contracting
Parties within two years from the date of this Convention the result of
their investigations, together with their opinions and recommendations
on the following questions". Then it states five questions, which I need
not read, having reference only to the best method of protecting the
seals. Then Article 2: "On receipt of the Eeport of the Commission
and of any separate Eeports which may be made by individual Commis-
sioners, the High Contracting Parties will proceed fortli with to determine
what International Eegulations, if any, are necessary for the purpose
aforesaid, and any Eegulations so agreed upon shall be embodied in a
further Convention to which the accession of the other Powers shall be
invited ".

Then the third Article is. — "In case the High Contracting Parties
should be unable to agree upon the Eegulations to be adopted, the ques-
tions in difference shall be referred to the Arbitration of an imi^artial
Government who shall duly consider the Eeports hereinbefore men-
tioned, and whose Award shall be final, and shall determine the condi-
tions of the future Convention." That is where these Governments stood
on the 25th of April, 1890.

Great Britain I repeat, pressing to have the subject determined by
the mixed Commission, willing to provide that if the Regulations reported
by tlie Commission should not be adopted by the Government, that an
Arbitration should take place to determine what Eegulations should be
adopted. The first suggestion was that it was to be referred to the
Governments. This ultimately took a different shape, and resulted in
the formation of the present Triburuil. In the letterof Sir Julian Pannce-
fote transmitting the document which I have read he says. "The draft,
of conrse contemplates the conclusion of a further Convention after full
examination of the report of the mixed Commission. It also makes pro-
vision for the ultimate settlement by Arbitration of any difterences which
the report of the Commission may still fail to adjust whereby the impor-
tant element of finality is secured, and in order to give to the proposed
arrangement the widest international basis the draft provides that the
other Powers shall be invited to accede to it. The above proposals
are of course submitted ad referendum, and it only now remains for me to
commend them to your favourable consideration and to that of the Eus-
sian Minister. They have been framed by me in a spirit of justice and
conciliation and with a most earnest desire to terminate the controversy
in a manner honorable to all parties and worthy of the three great
nations concerned."

3$ AEGUMENTS ON PRELIMINARY MOTIONS.

This patchwork took and re-took shape, and was turned over in this
correspondence, which was very protracted; and when, at last, one sec-
tion after another, under difierent circumstances, and at difierent times
had taken form and had been brought together, from that it will be seen,
by travelling through this correspondence from beginning to end, where
this word "contingency" came from.

It is the contingency of there being any Arbitration; not the contin-
gency of the decision ; and yet, as has been pointed out by one of the
learned Arbitrators, when you come to embody them together, and put
in not only Article 9 but Article 7, there is room for saying that since
the Arbitrators are not to determine the Regulations until they had
determined the rights; perad venture the contingency that is referred to
in Article 9 is the decision that is spoken of in Article 7.

The President. — Possibly, Mr. Phelps, if you are going to begin a
new point it is better for us to adjourn till to-morrow.

[Adjourned till to-morrow at 11.30.]

THIRD DAY, 5TH APRIL 1893.

The President. — Now, Mr. Phelps, will you kindly continue your
argument ?

Mr. Phelps. — I had the honor, Mr. President, on yesterday to con-
sider at a length for which, in view of the importance of tliis question,
I shall not apologise, the construction of this Treaty as bearing on the
questions of when and how the evidence on which the Tribunal has to
proceed sliall be submitted to its consideration. I have spoken of this
lieport wliicli it is proposed to put in, as a piece of evidence merely;
evidence invested, however, by the terms of the Treaty with a broader
scope and a higher character than is aftbrded to other evidence. I
remarked that I had not examined the Eeport, and that I could not
speak from knowledge in respect to its contents. I have been since
informed, and if I have been inaccurately informed I shall be subject
to the correction of my learned friends, that this Supplemental Report,
as it is called, of the British Commissioners, contains in a sort of
Ap]>endix a new mass of evidence; depositions of witnesses bearing
on the questions of fact in the case. So that it is not only proposed
to put in at this stage, if my information is right, a furtlier Keport of
the Commissioners, but a mass of testimony of witnesses testifying
upon oath in respect of the facts rejiorted. Now, if that is so, is it
possible to carry this discussion any further*? Can it be conceived,
after the particular provisions of this Treaty in respect of the time and
manner of the submission of the evidence, that at this late stage, when
we are just rising to address the Court in an oral argument that might
not have taken place at all, — for as I have pointed out the Treaty does
not "require" it; it only "allows" it, — that at this stage, not merely
this supplemental Report that we are objecting to, but a mass of ex parte
testimony coming from witnesses we never saw, that we cannot possi-
bly reply to, that contains facts ever so erroneous, untrue or impeach-
able we cannot show it, — that such evidence is to be brought in, and
perliaps turn the decision of the case, on the important facts that
underlie it.

Two theories have been propounded by the respective parties, upon
the construction of the Treaty, in respect to the method of procedure.
As I have remarked, this point has been the subject of some diplo-
matic discussion, which I shall ask the attention of the Tribunal to, and
the views of the other side have been communicated to us in a letter
which accompanied, I believe, the notice that this Report would be
offered, so that we are advised of the position which the Counsel for
Her Majesty's Government take. Their theory is this: That there are
to be, in effect, two hearings, two Arbitrations, two awards, first upon
the five questions that are propounded in the Treaty, next in the
event that those questions should be decided in favor of the British
Government, a further hearing upon the subject of Regulations, and
that on that hearing fresh evidence, other evidence not theretofore in

87

38 ARGUMENTS ON PRELIMINARY MOTIONS.

the case, is to be admitted. That is their view. We deny altogether
that the treaty contemplates any such thing as two hearings or that
the Case discloses any propriety for such a method of procedure; I do
not say necessity, but any proi^riety.

The language of the article is: "If the determination of the fore-
going questions as to the exclusive jurisdiction of the United States
shall leave the subject in such position that the concurrence of Great
Britain is necessary to the establishment of Regulations for the proper
protection and preservation of the fur seal in or habitually resorting to
Behringsea, the Arbitration shall then, determine", not that they shall
" then hear", not that they shall "hold a new session to receive evi-
dence not before placed in their hands ", not, I repeat, that there " shall
be a second Arbitration", but "that they shall then determine".

It is the common case, the very common case in judicial proceedings,
where a case presents different questions, the decision of one of which
one way suj)ersedes the necessity of deciding the others; — as wheie a
liability in an action is denied, if that contention is sustained, and it is
found that the defendant is not liable, there is an end of the case; if
the decision is the other way, and it is held that the deiendant is liable,
then arises and requires to be determined, the question of damages.
Not upon a second hearing. All those questions are argued together
to the Court; and they determine so many of them as is found to be
necessary to the disposition of the case. The same remark applies to
a great variety of cases. There are very few cases of any magnitude
that turn necessarily and entirely upon one question. There are usu-
ally alternatives of decision. A multitude of points are argued, any
one of which may be, in the judgment of the Court, decisive. This Case
is no more than that, and provides for no more than that; and the
language of these Articles is perfectly consistent with such construc-
tion, even though taken alone you might say it was not inconsistent
with the other. — Taking a few words here, or a line there, you might
say that is consistent with the other construction; but if there is any
patent or latent ambiguity in the language that is employed in these
articles, it is disposed of as far as the question of evidence is concerned,
when you find that the only opportunity for putting in evidence at all
on any question, is confined to the Case and to the Counter case. I
admit that it is conceivable that you may hear this Case twice, that
you may hear the five questions and decide them, and then hear the
sixth, though the Treaty calls for no such thing, and the ordinary course
of procedure precludes it. But that you shall hear it upon any other
evidence than that which the case already discloses, is impossible,
unless you adopt the alternative that you will hear it upon evidence
which the Treaty furnishes no means of taking or submitting, and no
possible means of reply to by the side against whom the evidence is
produced. Our construction of the Treaty therefore is that the whole
case is to be heard upon the evidence in the Case, and in the Counter
case; and what the proper discrimination between the two is I shall
have occasion to ask the attention of the Tribunal to hereafter. — But
the hearing is to proceed upon the evidence that is already in the Case
and the Counter Case, and there is no provision for, and no possibility
of admitting further and future evidence of any kind under the strict
provisions of this Treaty. This question is not new; I mean it is not
new in the history of the Case. The United States, to begin with,
never having conceived for a moment of any other construction as pos-
sible, and never dreaming that any such other construction would be
set up, put in to its Case, its original Case, all its evidence upon every

ARGUMENTS ON PRELIMINARY MOTIONS. 39

point and particular. It was all printed, and went into the hands of
the British Government at the time when the Case was delivered, on
the l''^ !Septeml)er, the time fixed in the Treaty.

Mr. Justice Harlan. — It was due Sei)tember 7***.

General Foster. — Sei)tember 5*'' I think.

Mr. Phelps. — It was some early day in September, and we conformed
to the time imposed by the Treaty, whatever it was. It all went in, the
evidence we stand upon today, except that which is contained in our
Counter Case, which is strictly in reply to the evidence on the other
side. We received at the same date the British Case, and, to our aston-
islnnent, not a word of evidence was brought forward in it upon any
question in the Case, except the questions propounded as to the previ-
ous possession and occupation by Russia.

That is a question which we shall regard and treat as altogether sub-
ordinate. It depends chiefly upon documents; documents that are not
new, wliich everybody had seen before. The British Case, therefore,
contained nothing except a re-print of documents and i^apers relative
to the old title asserted by liussia over theBehring sea, and the Treaties
between Great Britain and Bussia and Great Britain and the United
States, and the correspondence that preceded and followed them. That
is what they furnished us. I am reminded by Mr. Foster that there is
something about damages in their case, but that is a small matter. On
all the merits of the case, with which you will be called upon to deal,
merits that cannot be approached, as I said yesterday, except on the
basis of evidence, for they all rest on questions of fact, they gave us
nothing at all. That was immediately made the subject of correspond-
ence between the Governments, and on page 139 and following, as far
as page 150 of the Counter Case of the United States, will be found
that correspondence. I respectfully ask the Members of the Tribunal
to peruse it. I am not justified in taking up the time to read it here;
but 1 respectfully ask its perusal. The Government of the United States
expressed its surprise that no evidence had been submitted on the part
of Her Majesty's Government on any of the questions, which it was
perfectly well known by long dispute and correspondence, were those
on which this controversy turned, aside I mean from the Russion ques-
tion. It remarked that, if it was the pleasure of Her Majesty's Govern-
ment to submit these questions without evidence, their right to do so
was undoubted. It was not for us to suggest what evidence they should
put in, or that they should put in any; so that if we were informed by
them that it was not designed to submit evidence, we nad nothing further
to say. We could not, however, believe that to be possible; and, there-
fore, we claimed that the Treaty required they should put it into their
Case, as we had done, so as to give us an oj)portunity to meet it; other-
wise we must go to trial upon their whole Case without any opportunity
to reply to it by any evidence; and, as we pointed out, with a very scanty
opportunity, if the evidence was contained in the Counter Case, even
to deal with it in argument. Because the Counter Case was received
as late as the 3rd of February; the first meeting of the Arbitrators was
on the li3rd of February; we had to find our way across the Atlantic,
and not only to make but to print and even translate, which involved
printing twice, such written arguments as we desired to submit; so that
not only were we deprived of the possibility of taking any evidence in
reply, first because the Treaty did not admit of any evidence after the
Counter Case, and secondly, because the time did not allow it. We had
not even time to deal except very hastily in the written argument that is
now before you, — with the evidence on the other side, we pointed out

4U ARGUMENTS ON PRELIMINARY MOTIONS.

also that the American Commissioners' Eeport was included, as it should
have been, in our Lase. The sei^arate Keport made to our Grovernuient
by the American Commissioners was furnished, but the British Kei)ort
was withlield. We pointed out in tliis letter the gross injustice of
having' a Keport made up by the British Commissioners after having
been furnished with the Keport of the American Commissioners as the
result of their joint investigation. Lord Kosebery was sutliciently
struck with the force of those considerations to state, or we should not
otherwise have known it, that the British Keport had been prepared in
])oiut of fact and ])laced in the hands of their Government before our
Case had been received, so that we were in error in supposing, what
we were justified in supposing until we were otlierwise informed, that
the British Keport was made up after inspection of ours. Then he con-
ceded so much as this, that he furnished us at tliat time with a copy of
tlie British Commissioners' Keport, being willing to treat it as a part of
their Case as we had offered, because in this communication we had
said "If you will furnish your evidence now, we will accept it as ])art
of the Case; the time is past, — but we do not stand upon that." They
sent us the British Keport, saying that they would treat it, as we had
proposed to do, as i)art of the Case; but he declined to accept the views
of the United States Government as to the other questions.

Then the question arose what the Government of the United States
should do, whether it should go on in the face of the assertion of the
other side that it was proposed to put in theii" whole testimony when
we could not answer it, nor even deal with it (except the British Com-
missioners' report), or whether the Arbitration should terminate then
and there. The question may be asked why it was not terminated.
That is not for me to answer. If I had been in control of the poMcy of
the Government, instead merely of the conduct of this case, it would
have terminated. I never would have consented to a proposition that
seemed to me gross in its injustice and humiliating to the Government
that submitted to it. In my opinion to go on upon such a proposal
with a proceeding that jjrofessedly in its theory, in its object, was to
dispose by friendly Arbitration of questions that had arisen between
two nations, of whom neither had the right or desire to suppose that
the other wished for anything but fair dealing and fair discussion, was
not to be thought of. But wiser Counsels undoubtedly than mine pre-
vailed and the Government of the United States decided to go on.
They did not aecei)t, acquiesce in, or agree to the theory of the British
Government. In the last letter of Mr. Secretary Foster will be found
stated with great clearness and precision the attitude of his Govern-
ment.

I state the substance without taking up your time to read it. It was
in effect that to revoke and stop the Arbitration was in the estimation
of the Government calamitous. They thought perhaps that in receiv-
ing the Britisli Keport they had obtained most of the evidence on the
other side, perha])s substantially all the evidence, and above all, that
they would stand in the judgment of the Arbitrators at last as to what
Evidence was legitimately before them under the provisions of this
Treaty, and what was not. — And they were willing to trust themselves
to the judgment of the Tribunal, and to reserve the objections which
they still insisted upon to that mode of trial until the case had come to
be heard.

Senator Morgan, — Did the British Government protest against
putting in the Keport at the time?

ARGUMENTS ON PRELIMINARY MOTIONS. 41

Mr. Phelps. — The Britisli Government said, as you will perceive
from the correspondence and the letter of Lord Rosebery, that they did
not conceive that we were entitled to it, but as we had complained of
the manner in which they had proceeded, they were willing to furnish
it to us. They furnished it to us very much as we furnished to our
friends on the other side the Report that was under discussion yester-
day, not as a matter of right, but as a matter of favor.

Lord Hannen. — A concession.

Mr. Phelps. — Yes, a courtesy.

Senator Morgan. — Was it furnished as constituting part of the Case.

Mr. Phelps. — It was furnished to be received as a part of their
Case. That is the way it was received, but in making it a part of their
Case, they did not admit that they were obliged to do so, but that in
view of the considerations we had presented as to its fairness, they con-
sented to do it. If they had furnished their other evidence, there would
have been no ground of complaint. The case went on, and on the 3^**
of February we received the Counter Case which is before you, which
you will perceive contains a great mass of evidence, of which theKeport
of the British Commissioners which we had previously seen was but a
small part. A great amount of ex parte depositions — we do not com-
plain of their being ex parte — ours are ex parte — that is the necessity of
the case. But the fact that it was necessanly ex parte made it far more
important that we should be furnished with it in time to re[)ly. But
the testimony is not only ex parte, but came to us on the same day that
it came to you. We saw this testimony when you saw it, and we never
saw it before. Then it became necessary for Counsel to determine what
course to take. An obvious course was to apply to the Tribunal in
advance of the hearing to strikeout all the evidence upon the merits —
all the evidence that should have been in the Case — I mean all that was
not properly in reply to our Case. What would have been the con-
sequence of that motion if we had made it? If the Tribunal had
accepted our construction of the Treaty, and held that its Articles
required that their evidence in chief should go into their Case, and that
the Counter Case should be confined to evidence in reply, and had
therefore stricken out the whole body of this evidence, that would be,
of course, an end of the Arbitration. W"e could not ex])ect that my
learned friends would go on with this case if all their evidence was
stricken out. We could not ask them to do it. If we had succeeded
therefore in eliminating from this case all the evidence on the part of
Her Majesty's Government, we should have brought the Arbitration to
an end, because, as I have before remarked, there is no power in the
Tribunal to enable them to replace it. It would have been only an
indirect way of revoking the Arbitration, if we had prevailed by the
decision of the Tribunal upon such a motion. We examined the evi-
dence, and decided, unfair and unjust as it was, and much as we should
have liked to reply to much of it, that we could sustain our case not-
withstanding, and we would go on.

Now, upon the top of that, after our written argument is submitted,
and when we rise to address the Court, a new batch of attidavits or
depositions, or whatever they should be called, and a fresh report by
these industrious gentlemen whose labors have pervaded the case from
beginning to end, and whose conjectures and inferences and hearsay
and everything else that they think proper to include, are made evidence
by the Treaty, are proposed to be put in. What is the consistency of
the position on the other side? They say that in their view all evidence
bearing upon Kegulations should be reserved till after the Award of the

42 ARGUMENTS ON PRELIMINARY MOTIONS.

Tribunal upon the previous five questions; that our evidence on the
subject jniuted in our Case, is irregular, and should not have been put
in at all; that they were not only justihed but required to withliold
theirs, and that it is we who are irregular as far as the question of lieg-
ulations is concerned. What is this evidence'? What does it bear on?
If it bears only on Kegulations, why is it now oftered on their theory?
The time has not yet come for putting in any of it, if their construction
is correct. Why is their Commissioners' Keport, which is by the
Treaty solely confined to the subject of Regulations — why is that in?
In answer, it may be said, to our complaint. Then why is the rest of
this evidence ottered, if the time for it has not yet come? On the other
hand, if it bears on the merits of the Case, and as these questions are
inextricable, it does bear upon the merits of the Case, and you will find
in the ])rinted arguments of my learned friends that it is all relied
upon all the way through on all questions, why was it not included
in the Case where we could meet it? By this inconsistent construction
which in its result is so unfair, they get into the case for all purposes
througli their Counter case, the body of their evidence, in such manner
that we are entirely unable to reply to it by testimony in contradiction,
impeachment, or explanation. The Tribunal will seethe importance of
this. They will see why we have felt justified, at a length that 1 fear
has been wearisome, in discussing the construction of the Treaty on
this all-important point. The United States Government point out in
their correspondence that if they had dreamed of such a construction,
they would not have entered into this Treaty. They need not have
pointed it out. Is there a man who is compos mentis that would enter
into a contract to try an imi)ortant cause before any Tribunal, upon
the terms that bis adversary should hear and have possession of his
evidence, and have an ample opportunity of replying to it, and that he
should have no 0])portunity to meet the evidence that was brought
against him? Is there a Court that ever sat that had any discretion
on the subject that would permit such a thing to take place? Is it
conceivable that the United States Government were so anxious to
afford the world the exam])le of an international Arbitration that they,
understanding it, entered into an agreement to try this case upon
those terms? Mr Blaine, who had ceased to be Secretary of State,
and is now passed away, but under whose administration this Treaty
had been negociated — one of the last acts — the last act, I am reminded,
of his life that had reference to any official business, was to subscribe
his name to the declaration that he never dreamed of such a construc-
tion, and that it never was suggested from the other side in the whole
course of the proceedings. It was an unnecessary declaration, because
to suppose the contrary would be to stultify the Secretary of State.

The President. — Is this opinion of Mr Blaine laid down in an
official document which you mention.

Mr. Phelps.— He had ceased to be Secretary of State, so that it
would not be proper to describe it as an official document. It was fur-
nished to the Secretary of State and transmitted to the British Gov-
ernment, and is printed in the correspondence to which I have just
referred the Tribunal, and will be found in page 350.

The President. — Will you be kind enough to read it if it is not too
long?

Mr. Phelps. — It is from Mr. Blaine to Mr. Foster, November the 8th
1892. Mr. Foster was then Secretary of State: "After an arbitration
had been resolved upon between the American and British Goverments,
a special correspondence between the Department of State and Lord

ARGUMENTS ON PRELIMINARY MOTIONS. 43

Salisbury ensued, extending; from early in July to the middle of Novem-
ber, 1891. The various subjects which were to be discussed, and the
points which were to be decided, by the Arbitrators in the affair of the
Behrinji- sea were agreed upon in this correspondence. A month later
Sir Julian Pauncefote, the British Minister, and myself arranged the
correspondence and reduced the propositions to a Memorandum which
was signed by us on the 18th December." (That sustains the remark in
respect of the history of this Treaty that I made yesterday.) "Subse-
quently, the questions which had arisen between the two Governments
concerning the jurisdictional rights of the United States in the waters
of the Behringsea were ex])ressed in the form of a Treaty concluded at
Washington on the 29th February, 1892. This Treaty was confirmed
by the Senate on the 29th March, 1892, ratified by the President on the
22nd April, ratifications exchanged on the 7th May, and proclaimed on
the 9th May, 1892. In all these steps, including the correspondence with
Lord Salisbury, the Memorandum concluded between Sir Julian and
myself, and the Treaty that was ultimately proclaimed on the 9th May,
1892, and which was negotiated by Sir Julian and myself, not one word
was said or intimated respecting the question now raised by the British
Government as to a secondary submission of evidence after the first
five points set forth in Article VI had been decided by the Arbitrators.
It was never intimated that any other mode of proceeding should be
had than that which is expressed in Articles III, IV and V of the
Treaty." Articles III, IV and V of the Treaty are those which pro-
vided for the Case, the Counter Case, and the Argument. That is Mr.
Blaine's statement. I will read, as the Book is before me, the conclud-
ing passages of Mr. Secretary Foster's last letter to I^ord Rosebery in
terminating this correspondence, and enclosing to him tin's paper signed
by Mr. Blaine. He had argued this Case very fully and very clearly,
as it seems to me, through this correspondence; and be concludes:
"Having thus expressed the views entertained by the Government of
the United States upon the argument of Lord Kosebery in support of his
interpretation of the Treaty, it remains for me to add that I am
instructed by the President to say that he appreciates the spirit of
equity and liberality in which Lord Rosebery, while insisting upon his
own interpretation, practically to some extent at least, and I hopefully,
yields to the Government of the United Stiftes the benefit of its inter-
pretation by furnishing to the latter the separate Report of Her
Majesty's Commissioners, with the permission that the same be treated
as part of the original Case on the part of Great liritain. If, as I
believe and assume, this Report contains substantially all the matter
which Her Majesty's Government will rely upon to support its conten-
tions in res])ect to the nature and habits of fur-seals, and the modes of
capturing them, I entertain a confident hope that all further difficulty
upon the questions discussed in this note may be avoided. I deem
it necessary, however, to say that the Government of the United States
will, should occasion arise, firmly insist upon its interpretation of the
Treaty, and that it reserves the right to ])rotest against and oppose the
submission to, and reception by the Arbitrators of anj^ matter which
may be inserted in the British Counter Case which may not be justified
as relevant by way of reply to the Case of the United States."

The President. — That is previous to the Counter Case having been
given over.

Mr. Phelps. — Yes.

General Foster. — Three months before.

44 ARGUMENTS ON PRELIMINARY MOTIONS.

Mr, Phelps. — Three months before, and as I remarked a little while
ago, the Government were undonbtedly actnated in a large degree by
the oi)ini<)n assumed by Mr. Foster that in getting the British Commis-
sioners' Eeport we had substantially the whole of the eA-idence, and
that the question as to the submission of the evidence in chief in the
British Counter Case, though important, was practically one neverthe-
less, that we might not find it necessary to insist upon. Then three
months after comes the Counter Case which is before you, and we find
ourselves, as might have been anticipated, in the dilemma 1 have stated.
In asking you to reject the evidence it contains — and we believe we
could make it very clear that it ought to be rejected — we should only
be asking you to terminate the Arbitration at this late stage. We did
not take this responsibility. And therefore we must undertake to go
on and deal with this evidence in the best way we can.

These are the grounds. Sir, upon which we protest emphatically
against the reception of this supplementary report or any other future
evidence bearing upon the questions in this case that are to be deter-
mined by the Tribunal. It will be for the Tribunal to justify, if it is
to be justified, the anticii)ation of the.United States, that they might
trust themselves without terminating this Treaty, as we should be com-
pletely warranted in doing, in the hands and the judgment of a Tribunal
selected not to represent one party or another, but to do justice.

There is another objection to this Report to which I must briefly call
attention. I have discussed it thus far as being a piece of evidence,
just as I would have discussed it, had it been the deposition of a wit-
ness, and indeed, as I have said, a great deal of it is said to be made up
of the depositions of witnesses.

Sir Charles Bussell. — That is not so.

Mr. Phelps. — But there is a special objection in our apprehension in
the reception of this document, even if other evidence were now admis-
sible. If it were held that the case is open to the parties; and if it is
o])en now, it would be open till the award is made, and evidence might
be put in after the argument; if it were held that evidence is now
admissible, this document is not admissible. This Beport, with the
extraordinary weight and quality which is conferred upon it by this
Treaty, as a very cursory reference to the duties of this Commission
will show, should not be received.

You will excuse me perhaps for reading again what has been read
several times, namely Article 9, because it has not been read with a
view to this point. "The High Contracting Parties having agreed to
appoint two Commissioners on the part of each Government to make
the joint investigation and Report contemplated in the preceding Arti-
cle VII, and to include the terms of the said Agreement in the present
Convention, to the end that the joint and several Reports and recom-
mendations of said Commissioners may be in due form submitted to the
Arbitrators, should the contingency therefor arise, the said Agreement
is accordingly herein included as follows: Each Government shall
appoint two Commissioners to investigate," — how? " (7o//./o/Mf/y with
the Commissioners of the other Government, all the facts having rela-
tion to seal life in Bchring's Sea, and the measures necessaiy for its
proper protection and iireservation. The four Commissi(niers shall, so
lar as they may be able to agree, make a joint Report to each of the two
Governments, and they shall also report, either jointly or severally", —
even in the event of disagreeing they are still authorised to report
jointly, though not required to do so, — "to each Government on any
X)oints upon which they may be unable to agree. These Reports shall

ARGUMENTS ON PRELIMINARY MOTIONS. 45

not be made public", and so forth. The investigation was to be a joint
investigation. It was not the absurd provision of the Government
creating by Treaty what each might have created for itself without
Treaty, — an ex parte mission to Alaska to prepare its Case. It was
not a provision that each Government shoulcl send two attorneys up to
Alaska to gather evidence on its side, leaving the otber side to take
care of itself in the same way or in any other way it thought proper.
That needed no Treaty. It was to appoint Commissioners, whose posi-
tion corresponded to your own, to investigate jointly for the benefit of
both Governments the main facts underlying the questions in dispute;
to report jointly if they agreed, and jointly if they chose if they were
unable to agree, or severally; and then it was provided most properly
that the conclusions and recommendations and discoveries of such a
joint Tribunal, I may almost call them, — a Commission joint in its
character, in which both Governments were represented — that those
should be laid before the subsequent Tribunal, if it became necessary
to have a subsequent Tribunal. It is most jjroper that tliey should be
laid before you, but the force they are likely to have when they come
before you will very likely depend upon the judgment of the Arbitra-
tors as to how far they are or are not in compliance with the letter and
the spirit of the Treaty.

Now, the function of those Commissioners was exhausted when these
Keports were made, as far as the other Government was concerned.
They hec&mefuncti officio when they made their reports and submitted
them. There is no provision in the Treaty and no contemplation, that
half the Board after that, without the knowledge or concurrence of the
other half, should either make another expedition up to Alaska or should
sit down in London and make an investigation, and make a large body
of evidence and a new Keport on those questions, and that, at a late
stage of the Case, that should come in and be laid before you as evi-
dence. The whole spirit of the Treaty rebuts and repudiates any such
idea as that. What they chose to do for their own Government after
that is no affair of ours. They may make as many Eeports and inves-
tigations for their own Government, if their Government choose to
emj)loy them to do so, as they like.

Mr. Justice Harlan. — Do you know when the investigation was made
upon which this supplemental Report was based?

Mr. Phelps. — No better than Your Honor knows. I know nothing
at all about it. We never heard of this supplemental Eeport till the
same time that you did.

Sir Charles Kussell. — I beg you pardon; you had notice in the
Counter Case that we should present such, but only on the question of
Eegulationg, not on the incidents of seal-life.

Mr. Phelps. — I never read it. It is undoubtedly there if my learned
friend says so; but it never attracted my attention.

Mr. Justice Harlan. — What you mean is, that the document was not
seen by you ?

Senator Morgan. — It must have been in existence when the Counter
Case was handed in, if an allusion is made to it in the Counter Case.

Lord Hannen. — It is only reserving a right to y)resent it in future.

Senator Morgan — I spoke of the existence of the Report. It must
have been in existence at the time that the Counter Case was delivered.

Sir Charles Russell. — When the time comes, I will explain it
exactly.

Mr. Phelps. — There is a great deal more to be said about these
Reports; but not now. That arises on the merits of the Case, and I do

46 ARGUMENTS ON PRELIMINARY MOTIONS.

not intrude them on this question, which is only as to the admissibility
of this one.

Now, I say that the Treaty does not warrant it. 1 should have said
that, in pursuance of this provision, the United States threw those
Islands open to this Commission, furnished vessels, and extended every
possible facility. They went there together, — the four Commissioners,
as they should have done. They went at the same timej but they
declined the otter of the United iStates to furnish the same vessel, Mr.
Foster reminds me; so that they went on their expedition, and our
Commissioners made their Eeport, but the Islands were thrown open
either to themselves or with us. Then comes a Eeport which will
engage your attention at the proper time; and now comes this proposi-
tion, that after this is all over without any new investigation, for it will
not be pretended that they have been up there again, I think, — at a late
stage in the case they can sit down and make a new document which
shall become evidence in the Case? It would not be evidence, a large
part of it, if it come in at any time, if it is not invested with that char-
acter by the Treaty, and, unless it comes in according to the terms of
the Treaty, it does not acquire that character. I insist, therefore, in
respect to this document that, aside from the general objection to the
admission of any evidence at all, at this stage this is especially obnox-
ious because it is an attempt to exercise functions by the Commissioners
that had been exhausted under the terms of the Treaty by their pre-
vious Eeport, Lord Eosebery was struck, as I have said, when Mr.
Foster pointed out to him these Eeports that were to be the result of a
joint investigation and perhaps a joint Eeport. — "We have given you
ours; yours is to be made up in reply to ours," — "Oh! no," said Lord
Eosebery, "that is not so. Our Eeport was completed, and in the hands
of Her Majesty's Government on such a day"^ — some date in June,
I think, — "so that you are in error in supposing that the British Com-
missioners have availed themselves of the chance of examining your
Eeport before they made theirs." And he furnishes the Eeport. How
is it now? Are these men parties to this cause? Have they a perpet-
ual right to be heard, and, when thei-r conclusions are refuted by evi-
dence, to come in and swear over again or report over again, which is
the same thing in its effect, and gather more testimony and more hear-
say and conjecture and suspicion, until the thousand tongues of rumour
are exhausted, and still make it evidence.

There is only one other point, and it is the last remark, I have to
trouble you with. One other ground for the admission of this evidence
was stated by the Agent of Her Majesty's Government in the commu-
nication to the Agent of the United States Government, which accom-
panied, I believe, the notice of this Eeport, that he thought the Tribunal
would be glad of any "trustworthy" information that would aid them
to deterndne the questions before them. " Trustworthy" in the estima-
tion of Her Majesty's Government is ex parte testimony which has been
concealed from the other side and no possibility of reply allowed ! Is
that trustworthy information? Through what back door of the Tri-
bunal is it expected that such evidence would make its appearance in
Court if it made its appearance at all? Trustworthy? If the Treaty
does not quite admit it, you must really accept it, because it is so
"trustworthy"! I cannot add anything to the force of that adjective,
and I will not try. How far we are entitled to comment upon the evi-
dence in the Counter Case that has thus come in against our protest,
and as we say utterly out of order will come up hereafter. We are now
engaged only in protesting that this addition should not be made to it.

ARGUMENTS ON PRELIMINARY MOTIONS. 47

Sir Charles Eussell. — Does any body add anything?

Mr. Carter. — I designed to close the discussion, but 1 desire brevity
and 1 sliall not offer anything- further at this point.

The President. — I call your attention to the fact that we have only
half an hour before the interruption of our meeting.

Sir Charles Eussell. — I cannot conclude in that time.

The President. — I dare say not. I mention the fact beforehand in
order that you may dispose your argument in consequence.

Sir Charles Eussell. — If you please, Sir.

When, Sir, we received the Notice of motion which the representa-
tives of the United States thought i)roi)er to send intimating their
intention to make the application which has been put forward by my
learned friend we anticipated a discussion which would have been of
a legal character. In other words, we anticipated a discussion upon
what was the true interpretation of the Treaty under which and under
which alone this Tribunal derives its authority, and we certainly did
not anticipate that this would have been made the occasion of import-
ing into the discussion the heat, the extraordinary heat, that my learned
friend has manifested, and still less did we anticipate that it would
have been made the occasion for flinging very broad, very wild, and,
as I shall hoi)e to demonstrate, utterly unfounded suggestions of
attempted injustice on the part of Her Majesty's Government.

Mr. Phelps. — I did not mean to say that, Sir Charles. I meant to
say that the result was injustice.

Sir Charles Eussell. — Well I am glad to have given the opi)or-
tuuity, at all events, for a disclaimer of something which certainly was
conveyed, in our apprehension, by some things that my learned friend
has said. My learned friend has made these high sounding appeals to
justice and has told us that there can be no justice of judgment unless
there is justice of procedure, what is that — (my learned friend will not
suppose I mean to be offensive in saying it) — but a neatly dressed plati-
tude? This Tribunal is, I admit, — nay, it is part of our Case, — gov-
erned — governed absolutely — by this Treaty, I begin by making the
admission, that if, according to the true construction of that Treaty,
we are not entitled to use and to refer to what has been called the Sup-
plementary Eeport, we will bow to the judgment of this Tribunal as a
matter of course. But I hope to make it apparent, not I will say to a
majority only of this Tribunal, but I hope to make it ;ipparent to each
individual member of this Tribunal that we are perfectly within our
rights according to this Treaty in the course that we have pursued and
in claiming admissibility for the document in question. Now I shall
best express the condensed sense of the argument which I have to
address to you by reading, as T know it is the desire of the Tribunal
that I should read, our short answer to the contention on the other
side, which has been reduced into writing, and which, as I think the
President desired in the previous Case, should be handed in to those
who have charge of the record of our proceedings. We submit " that
the supplementary report of the British Commissioners dated the 3ist
January 1893 presented solely with reference to the question of Eegu-
lations and under the i)rovisions of the Treaty of Arbitration of the
29th of February 1892 is properly presented to the Tribunal and should
be considered by them in the event of their being called upon to deter-
mine pursuant to Article VII what if any concurrent Eegulations are
necessary." Now, Sir, you will observe that puts iu the fore ground a
point obscured in the argument of my learned friend it puts in the fore
ground the fact that this Sujiplementary Eeport is not conversant with,

48 ARGUMENTS ON PRELIMINARY MOTIONS.

does not pretend to deal with, is not intended to be used in relation to
any of the questions of right raised in this Arbitration, and this brings
me to the very heart of this contention. Tliis brings me to, in fact,
the point which alone can supply any justification for the grave impor-
tance which my friends have sought to attach to this discussion. What
is that point. What is the heart of this mystery. It is this. That
my learned friends desire that this Tribunal should deal with all the
questions embraced within the purview of this Treaty as if they were
but one question, that this Tribunal shall be able to mix up and to con-
sider in the same range of thought and argument two classes of ques-
tions which are distinct in themselves and are made distinct beyond
any question in the Treaty. And therefore the first point to which I
desire to address myself is to make it apparent, because it is the founda-
tion upon which my whole argument rests that not only are there two
sets of questions, or two divisions of questions, I should prefer to say,
differing in their nature and as to whi<ih different considerations as to
evidence apply, but that this division marks out a further division of
the functions of this Tribunal itself in the consideration of those two
divisions.

Now you have before you, Sir, copies of the articles of the Treaty,
and I will not trouble you by more than a passing notice of articles
III, IV, and y, which deal with the presentation of the Case, on each
side and which in Article V contemplates, not as a matter of grace or
favor, as my learned friend seemed at one moment to suggest, but as
a matter of right, oral argument before these Arbitrators upon the
questions involved; and then machinery having been provided in those
Articles III, IV, and V, for the presentation of the Case on each side,
by Case Counter Case and Argument, Article VI proceeds to set out
five points which may be shortly described by me — I think correctly
described, — as claims of right upon the part of the United tstates in
relation to the subject matter in controversy; and not of right merely,
but of exclusive right. The first question is the exclusive jurisdiction
claimed in tlie Behring sea, and the exclusive rights in the seal fish-
eries which it is alleged were asserted and exercised by Russia. That
point being made on the pait of the United States, in order to support
what is put forward more or less seriously — very seriously indeed in
the diplomatic correspondence which led to the Treaty, but which, if I
may judge from the arguments presented, and the Counter Case of the
United States, is now going to take what my learned friend euphemis-
tically called a subordinate place in the arguement — the second ques-
tion is "How far were these claims of jurisdiction as to the seal fish-
eries" — "of jurisdiction", that is to say these exclusive claims, "as to
seal fisheries recognized and conceded by Great Britain". Need I do
more than point out in passing to the Jurists whom I am addressing
that upon that allegation was intended to be asserted a claim by the
United States based upon long user, acquiescence, and recognition of
certain supposed rights, so that Great Britain was to be excluded from
the consideration of those laws which regulate territorial jurisdiction
and cognate rights, and was in the language of lawyers to be estopped,
to be prevented from saying that these rights so recognized had no
legal foundation or support in International Law at all.

The third question is subsidiary to tliese: "Was the body of water
now known as the Behring's sea included in the phrase 'Pacific Ocean',
as used in the Treaty of 1825 between Great Britain and Kussia, and
what rights, if any, in the Behring's sea were held, and exclusively
exercised by Kussia, after said Treaty". Again a question of right.

ARGUMENTS ON PRELIMINARY MOTIONS. 49

Allf .cation on the part of Great Britain that, whatever may have been
the antecedent state of thingrs, that passed away and was removed by
the Treaty of 1825, because the Treaty of 1825, according to tlie con-
tention of Great Britain, gave in ex])ress terms rights of fishing
amongst other rights — 1 slioukl have said it recognized — not gave, but
recognized rights of fisliing, amongst other rights in the Pacific Ocean,
which was a comprehensive plirase, intended to include the Behring
sea. No, said the United States, the Behring sea was left, and left
designedly out of the Treaty, and whatever rights Russia claimed and
exercised to Behring sea were left untouched by that Treaty. But
now, according to my learned friend, this has become a subordinate
question. He has referred to that distinguished man now passed
away, a man whose ability both Hemispheres have recognized and
acknowledged, some of whose able communications and arguments upon
this matter I shall have to consider at a later stage of this discussion.
But what did he say upon this question? Writing on the 17th Decem-
ber 1890. I am referring to page 263 of the Appendix to the Case of
the United States, Volume I — he wrote in this language: — "Legal and
dii)lonuitic questions, ai)parently comi)]icated, are often found, after
piolonged discussion, to depend on the settlement of a single i)oint.
Such, in the judgment of the President, is the position in which the
United States and Great Britain find themselves in the pending con-
troversy, touching the true construction of the Russo-American and
Anglo-Russian Treaties of 1824 and 1825;" and then, after dwelling
ujjon that for a moment he goes on, "If Great Britain can maintain
her positi(m that the Behring sea at the time of the Treaties with Rus-
sia of 1824 and 1825 was included in the Pacific Ocean the Government
of the United States has no well grounded complaint against her;"
and yet we are now told by my learned friend that the importance of
this question is receding into the background and is, after all, only a
subordinate question. Why it suits the exigencies of the discussion
of my learned friend to assume that position will become apparent
when it is more germane to the matter in hand to enlarge, as 1 must at
a later stage enlarge, upon this branch of the argument and of the
controversy. W^hat is the next question ? Did not all the rights of
Russia as to jurisdiction and so on, pass by the cession of 18G7 when,
as you know, the United States of America acquired by cession of that
year 1867, the district of Alaska and the rights properly incident to
the territorial cession of that country — again supporting their deriva-
tive title? Finally. " Has the United States any right, and, if so, what
right of protection or property in the fur seals frequenting the Islands
of the United States in Behring sea when such seals are found outside
the ordinary three mile limit!"

Now I have read these questions, I would submit, — and I appeal to
the judgment of any single Arbitrator who hears me — and I do not
understand my learned friend even to suggest the contrary — that every
one of those questions depends upon riglit. As I say, 1 do not under-
stand that to be disputed. But what follows from that? Why not
only that there is a distinction as to the character of the questions,
but that this distinction involves — necessarily involves — a distinction
in the functions which this Tribunal have to exercise in relation to
those questions, if there be found also in the Treaty questions which
do not depend upon right. What is that distinction? Well, it is clear.
You are a distinguished body of Jurists. You are chosen because you
are so. You are here not to make the law, not to declare what the law
ought to be, but you are to adjudicate upon questions of right as the
B s, PT XI 4

50 ARGUMENTS ON PRELIMINARY MOTIONS.

law is. In other words, in tliis respect, your functions are distinctly?
absolutely, solely, the tmictious of Judges and of Jurists.

But I ])nss ironi those questions, and 1 have to show if I can that the
Treaty conteni])lates by this Tribunal the settlement of otlier questions
which are not dei)endent upon right, which are not dependent upon the
assertion of exclusive right; but you are asked (the questions of right
being decided), to apply your minds as an impartial Tribunal, and
representing not one side but both, recognizing the fact that there are
other rights than the rights of the United States and other rights th;in
the rights of Great Britain, to determine what regulations are neces-
sary for the proper protection and preservation of the fur seal. You
are then dealing with an area of the open sea in which the rights of
mankind are common and you are asked, m the interests of allio say
tchat n-onid be the just, the necessary, the proper regulations addressed to
the object, the 7nain object, of this Arbitration, the preservation of the
fur seal.

Senator Morgan. — Does the learned Counsel insist that that is a judi-
cial function on our part f

Sir Charles Kussell.— iV^of at all. I am glad that the Member of
the Tribunal who has addressed me is recofjnizing the distinction that I
am drawing. No. When you get to that part of the Case, you will
have to do what in the interest of all concerned is expedient. You have to
stand bcticeen tlicse parties who are in controversy, recollecting that each
of them has a right which 7mist be regarded and borne in mind and that
outside the immediate parties to the controversy there are others ivho have
rights as apart of manldnd.

Senator Morgan. — In that vieAv, if I understand the Counsel, ice
have something to ordain in that particular view of the case, and not any-
thing to adjudicate.

Sir Charles Russell. — You have to recommend and to recommend
with authority.

Senator Morgan. — <-^ Determine'''' is the language.

Sir Charles Kussell. — Yes, determine.

Lord Hannen. — '■^ Deter mine''\

Sir Charles Russell. — Determine I agree that is ichat you have to
do; and icithout pledging myself for the moment to the acceptance or the
non acceptance of the word '■'■ ordain^^ as distinguished from the word
'•'• determine''\ as distinguished from the ivord '■^ adjudicated^ which possibly
is correct. — I can convey my meaning, I think, intelligibly; you have,
under the first head, to deal as Judges and Jurists, under the second
head, you have to deal as just men ordaining a set of rules which the
parties have left to your determination and which you are asked to
determine in view of all the interests affected. That I take to be the
grave distinction.

Well then in what order is this question to come before you. If my
learned friends are right or my learned friend Mr. Phelps is right in
his contention, there is no reason why he should not begin at wlmt I
would call the wrong end of this discussion — why he should not say
" Well, I have already gone the length of admitting that these questions
of right are gradually recediiig into the background, I do not attach
imi)ortance to them. I will as^k the Tribunal to begin with the Regu-
lations"! Could he do sof

Mr. Justice Harlan. — What I wish to ask just here is whether, in
your use of the word rights you are referring to the rights that may be
involved in the answers to the first fi)ur questions, or do you embrace
also the rights involved in Question Hi

ARGUMENTS ON PRELIMINARY MOTIONS. 51

Sir CnAELES Kussell. — Unmistakably Question 5, — unmistakably,
beyond any ijossibility of argument whatever, yes, and the contrary
has not even been suggested in argument by my learned friend Mr.
Phelps; absolutely.

Senator Morgats^. — If the learned Counsel will indulge me for a
moment I wish to call attention to the first question under Article G,
"What exclusive jurisdiction in the sea now known as the Behring's
Sea, and what exclusive rights in the seal fisheries therein did Russia
assert and exercise prior and up to the time of the cession of Alaska
to the United States!" The point I wish to call the attention of Coun-
sel to is ichethcr the ^'•assertion and exercise prior ^^ to that period by
Eussia is not the proposition that we have to answer instead of the
rightfulness of the exercise and assertion.

Sir Charles Kussell. — I think both; either would be enough for
my purpose, but I think both. But now I follow the question addressed
to me by another member of the Tribunal and I would desire to give a
little fuller answer to it. How are these questions introduced'? I was
putting to myself the question whether it would be comi)etent to the
Representatives of the United States to say. "We will dispence with
all those questions 1, 2, 3, 4 and 5. We will ask the Tribunal straight
away to come to the question of Regulations under Article VII ".
Would it be within their competence to ask it. Would it be within
the competence of this Tribunal to yield to that reqnest. I say emphat-
ically no, because Article VI begins by saying: " In deciding the mat-
ters submitted to the Arbitrators, it is agreed that the following five
points shall be submitted to them in order that their award shall
embrace a distinct decision upon each of the said five points". There-
fore the decision of the Tribunal upon each of those five points cannot
be dispensed Avith, but what is the order of the decision. Could they
decide the question of Regulations first and then proceed to the ques-
tion of right! No, because Article VII i^rovides this. I need not say
that any interpretation points to a contingency. " If the determination
of the foregoing questions as to the exclusive jurisdiction" you observe
" of the UuitQd States shall leave the subject in such position that the
concurrence of Great Britain is necessary to the establishment of
Regulations for the proper protection and preservation of the fur-seal
in, or habitually resorting to the Behring sea". What is to follow!
" the Arbitrators shall then determine" that is to say if the contingency
happens, then, but not till then, "the Arbitrators shall determine
what concurrent Regulations outside the jurisdictional limits of the
respective governments are necessary and over what waters such
Regulations should extend".

J think therefore that I have so far made good my position — I ought
not to say that I think so, as it is not the habit of Counsel, with us at
least, to express personal opinion and I wish to guard myself and desire
to follow the course which is considered the proper course in these mat-
ters to submit these matters, and let them be tested by the strength of
the arguments advanced in support of them without bringing in, and
I hope my learned friends will agree with me, the personality of Coun-
sel as a warrant for or against. I am quite sure that there are many
projjositionsput forward in the argument which I have had the pleasure
of reading x)resented by the United States which I should be sorry to
be, and I think my friends would be sorry themselves to be committed
to as approving Lawyers.

The contingency is, therefore, that if it shall be found that the matter
stands in such a condition of things that there is not the exclusive

52 ARGUMENTS ON PRELIMINARY MOTIONS.

right peculiarly appertaining to the United States, which is suggested
either under an inherent or under a derivative title, then the question
of Kegulations is to arise. I now think this the convenient moment
for supplementing the further answer to the question which one of the
Tribunal was good enough to address to me as to Question 5. Tlie only
difference between Question 5 and the preceding Questions is this.
Both relate to questions of right; both are based ujjon allegations of
right on the part of the United States. The only difference is that
whereas the Questions 1, 2, 3 and 4 are based upon what I may call the
derivative title under Eussia and ui)()n the allegation of acquiescence
of Great Britain, Question 5 asserts tho.se rights of protection and of
property as inherent in the United States itself by virtue of its territory
and rights inherent in itself, exclusive of others. That is the only
difference. In other words, Question 5 points to rights of an exclusive
kind belonging to the United States by reason of its inherent i)owers
as territorial owners; Questions 1, 2, 3 and 4 are conversant with the
allegation of rights of the same kind but based upon a derivative title
from Eussia, a title which they allege to have been recognised by Great
Britain.

^ow, I claim, therefore, to have made good, so far, the position with
which I set out.

Mr. Justice Harlan. — In order that I may get your idea exactly,
will you tell me, is it your contention that tlie arbitrators could not
determine the question named in the first two lines of Article VII as to
the exclusive jurisdiction of the United States without also determining
the question of the right of property in Question 5.

Sir Charles Kussell. — I think, Sir, I must ask you to be good
enough to repeat that question, and, if you could, in a little louder
voice?

Mr. Justice Harlan. — Is it your position, which I want to under-
stand fully, that the arbitrators could not determine the question in the
forefront of Article VII as to the exclusive jurisdiction of the United
States without determining also the question of the right of proi)erty
named in Question 5?

Sir Charles Kussell. — ISTo, I say that is involved. I have already
answered that in the answer that I have already given to you.

Mr. Justice Harlan. — Yes.

Sir Charles Kussell. —You will observe. Sir, that the thing is
clear. "If the determination of the foregoing questions," you will
observe, the argument is clear and I beg to point out that it would have
been very convenient, if this idea was passing through your mind or
through the mindof any member of the Tribunal, if my learned friends
themselves had been asked about it, because my learned friend (and
therein I think he was perfectly right) did not seek to draw any distinc-
tion such as is suggested in the question, nor indeed could he as I submit.
The first words of Article VII are. "If the determination of the fore-
going questions as to the exclusive jurisdiction of the United States."
It draws no distinctioil between Question 5, and Questions 1, 2, 3 and
4. It deals with the foregoing Questions. The foregoing Questions
are Questions 1, 2, 3, 4 and 5. That is my answer.

But now, Sir, I proceed.

The President. — I would rather that we broke off here if. you are
going to begin a new part of your argument.

Sir Charles Kussell. — If you please.

[The Tribunal then adjourned for a short time.]

ARGUMENTS ON PRELIMINARY MOTIONS. 53

Sir Charles Russell. — Sir, so far I have dealt only with the clear
and marked divisions of the questions and the clear and marked dis-
tinction as to the functions which this Tribunal is called upon to exer-
cise in relation to that marked division of the question. So far I have
said nothing about the Commissioners. It will be apparent to the
Tribunal that the reference to the Commissioners appears in the Treaty
in an inverted order. That is to say that Article VII refers to the part,
so to speak, that their opponents are to play in the controversy when it
becomes a question of Eegulations before the Tribunal whereas it is in
Article IX that we find the constitution of the Commission itself; and
therefore, with the assent of the Tribunal, I would refer to Article IX
first as being, I think, in the more natural order.

Article IX provides that :

The Hiffli Contracting Parties have agreed to appoint two Commissioners on the
part of eacli Goverument to make the joint investigation and report contemplated in
the preceding Article VII and to include the terms of the said agreement in the
present Convention to the end that the joint and. several reports and recommenda-
tions of the said Commissioners niay be.

Not ''shall be " but " may be " : — " In due form submitted to the Arbi-
trators, should the contingency therefor arise."

Thereupon it proceeds: "That each Government is to ajJi^oint two
Commissioners to investigate conjointly." And further:

The four Commissioners shall, so far as they may be able to agree, make a joint
report to each of the two Governments, aiui they shall also Report either jointly or
severally to each Government, on any points upon which they may be unable to
agree.

Then follows the provision that they are not to be made public until
submitted to the Arbitrators, or until it shall aj^pear that the contin-
gency of their being used by the Arbitrators cannot arise.

JSTow, first, it is clear from Article IX, and still more clear from Arti-
cle VII that the functions of the Commissioners have relation, and rela-
tion solely, to the question of Kegulations. Now, is that in dispute?
I do not think it can be disputed. I do not understand my friend Mr.
Phelps to have suggested the contrary.

Mr. Carter. — I do not know that Sir Charles expects an answer to
that.

Sir Charles Russell. — Merely yes or no. I anticipated rightly
that there was no contention about that.

Mr. Carter. — There is; we shall not agree to that.

Sir Charles Russell.— X beg your pardon. I understood you to
agree. Now, I understand it to be suggested that the Commissioners
reports have relation to other matters than the matter of Regulations.
That is what I understand.

Mr. Carter. — They relate to everything that they are pertinent for.

Sir Charles Russell. — Yes; but the point is what are they perti-
nent for? To that I get no answer. Either the functions of the Com-
missioners relate to Regulations, or they do not. What is the position
that the States Counsel take. In certainly understood — I may have
been wrong, of course I should not seek to bind my friend Mr. Carter
by any statement that my friend Mr. Phelps made; — but my friend Mr.
Phel])S in distinct terms said that this was the ordinary case in which
one question being submitted one way, other questions might, become
unnecessary to consider at all : therefore, if the first five questions were
decided one way, the question of Regulations might become wholly
immaterial. But I do not seek to rely upon any admission, qualified or
absolute. I rely upon the Treaty itself. What is the matter to which

54 ARGUMENTS ON PRELIMINARY MOTIONS.

these reports, to use my friend Mr, Carter's slightly dubious expression,
are pertinent"? This at least is clear, that Article IX coiiteiiii)lates a
coutiugeucy in \\^hicli their reports shall not be used. So far, 1 think,
we agree.

Then what is the function that the report is to i)lay and in reference
to what questions'? For that we have to look to Article VII:

If the (leterniiiiation of the foregoing ([iiestions as to the exchisive juiisfliction of
the United States shall leave the subject in such positiou that the concurrence of
Great Britain is necessary.

Then the Arbitrators shall determine that question.

"To aid them in that determination, a report of a Joint Commission,
to be appointed by the respective Governments shall be laid before
them " — the next i)hrase I will leave till a later period of my argu-
ment — "with such other evidence as either Government may submit."

It really passes my humble capacity to see what is to be said in
answer to the proposition which I respectfully affirm and submit, that
Articles VII and IX make that clear to demonstration which, up to this
moment, I did not think was even in controversy between us, that the
appointment of the Commissioners, to begin with, and the report of the
Commissioners consequent upon their ap])ointment, was to serve one
purpose and one purpose only — to aid the arbitrators, should the con-
tingency arise, in determining the regulations which they are to ordain.

I am a little surprised that there should be any doubt about that. I
cannot think there is any real doubt in the mind of any one of the
Tribunal whom I am now addressing. But of course I go further than
that— much further than that. I say that Article VII shows, and shows
for a very good reason, that when you come to the question of liegula-
tions you are following and observing an order quite distinct from that
which you are observing when you are dealing with the question of
right, because you have got what might be called self contained pro-
visions in Article VII, showing what the Tribunal may have regard to
in the consideration of the question of Kegulations. What is that"?
They are to be aided by the Eeport of the Commissioners; and what
else? "And this report shall be laid before them with such other evi-
dence as either Government may submit."

Keally one has a difficulty in knowing what is the construction put
opposite to this. My friend, Mr. Phelps, says that tlie fallacy in our con-
structions depends upon the misconstruction which we place upon the
word "contingency" in Article IX; and 1 agree — for I wish to c(nne to
close quarters upon the question — that if my friend's construction, of
that word "contingency" in Article IX is tlie correct one, he has
advanced a long way in the support of his argument; but equally by
contrary if his construction is the erroneous one it is fatal to his argu-
ment.

Now, the first thing to be observed is this: That the word "con-
tingency" occurs twice in Article IX. It occurs in the first clause; it
occurs in the later clause. Is it to be believed that it occurs in those
two clauses in a different sense and that the same word used in the same
article has one meaning in one part of that Article and another mean-
ing in another part? Xo, I do not think that will be urged; but I am
not asking for an answer. I do not think that will be urged; but what
is its meaning in the position in which it first appears?

I think, before I submit what the Tribunal has of course already
anticipated, as to the meaning which we attribute to it, it is best to see
what my friend, Mr. Pheli)s, says about it. 1 am reading from the print
of the shorthand note of the argument yesterday evening, at page 47

ARGUMENTS ON PRELIMINARY MOTIONS. 55

of the print, at the end of the second hirge clause, about the middle of
the i>aue: "These re])(nts, says tlie Treaty, shall not be made public
they siudl be submitted to the Arbitrators or it shall be considered".

Tliat the contingeiu\y of their being used by the Arbitrators cannot
arise. It is said tiuit that contingency refers to the contingency of the
decision.

"It is said" ought also to precede the nest sentence.

"It is said the contingency is, whether the Arbitrators shall decide
in favor of or against the claims of right which the United States
(lovernment have set up. We regard that as altogether erroneous. It
is the contingency of the Arbitration itself— the contingency of there
being any arbitration, not the contingency of the decision on the pre-
vious questions that the Arbitration shall reach, if it takes place".

That meaning is sufiticiently obvious; but it is made clearer if the
Tribunal will refer to page 50, the last sentence but two at the bottom
of the page. You will observe, sir, the sentence beginning "IJoesit
refer ".

"Does it refer, as my learned friend will contend, to the contingency
of the Tribunal deciding against the United States on the live questions
that are first propounded, or does it refer to the contingency of there
being aviy arbitration at all*?"

That is it say, those who argue on behalf of the Government of the
Queen contend that it depends on the contingency of the decision in a
particular way of the live questions, "I", says Mr. Phelps, represent-
ing the United States, "contend that the contingency referred to is the
contingency of there being any arbitration at all". The issue is there-
fore clearly joined betAveen us. My learned friend has stated with great
clearness, what he means is the construction. He adopts one construc-
tion; we adopt the other.

And finally, the last reference I shall trouble you with, Sir, is the last
paragra])h but one on page 51, of the short hand reports where there
is an interruption by one of the Tribunal putting a question. My friend
has concluded the sentence which ends, or begins a paragraph, I am
not sure which :

" If the Commissioners agreed, there would be no occasion for any
Arbitration."

This is still following out the idea that the contingency twice referred
to in Article IX referred to the contingency of there being no Arbitra-
tion at all.

"If the Commissioners agree," says Mr. Phelps, "there would be no
occasion for any arbitration". Then Lord Hanneu asks the question.

"Wliere is that embodied in the Treaty! Is it anywhere embodied in
the Treaty, that if the Commissioners agreed the Arbitration would
not go on?"

This is a very pertinent matter. My learned friend's answer is.

"No, your Lordship, it is not."

Now, therefore, the question is the question that is decisive in this
matter, as it seems we both think. — What is the meaning of the word
"contingency" in Article IX?

Now, let me guard myself upon one matter of construction. This is
a question of the construction of the Treaty; and although I do not
deny that on points where the Treaty is ambiguous it may be, and has
been so regarded by previous tribunals constituted like this, admissible
to refer to the negotiations which led uj) to the Treaty, in order to define
the subject matter of the Treaty, the subject-matter referred to the
tribunal, etc., I deny that where the Treaty itself is clear and unam-

, 56 ARGUMENTS ON PRELIMINARY MOTIONS.

biguous, tbat the reference to what Lord Salisbury may have thought
or said or written in his Cabiuet, the question of the Treaty being- a
matter of royal prerogative and therefore of executive actiou in Great
Britain, can be invoked in the construction of the Treaty; and equally
we know that by the Constitution of the United States the head of the
executive there cannot bind the country by a Treaty, but that it must
be a matter approved by the Senate or approved by a certain propor-
tion of the Senate. Agreed; but we have no more to do with discus-
sions in Senate or out of Senate, or as to what influenced this Senator
or that Senator in the view that he took in giving his vote for or against
the aftirmation of the treaty than we have to do with the thoughts,
opinions, writings, sayings of Lord Salisbury discussing the matter with
his colleagues or conveying his views by diplomatic correspondence to
the representatives of the Crown in foreign countries.

Then is this clear? Is it a matter of doubt what this "contingency"
means? Let us see the connection in which it is used:

"The Contracting Parties have agreed to appoint two Commissioners
to report on the part of each Government to make the joint investiga-
tion and to the end that the joint and several rei^orts and recommen-
dations — "

Can it be supposed that the recommendations had anything to do
with the question of decision and legal right?

"of said Commissioners may be in due form — "

What?

"submitted to the Arbitrators, should the contingency therefor arise."

It is not submitted to a tribunal of arbitration ex post facto to be
constituted, but it is subinitted to the Tribunal which by this Treaty
is constituted; and therefore to suggest that it was in the contempla-
tion of the parties to this Treaty that the contingency referred to, as to
there being arbitration at all, cannot be supported with any show of
reason whatever. The Tribunal is constituted by this Article.

But is there anything further to make that clear ? If my friend is right
in his contention, it follows that it was also contemplated that if the Com-
missioners should agree in their report — and that is what my learned
friend does not shrink from saying — that if the Commissioners should
agree in their report, there is to be no arbitration at all. There are
two answers to that. The first answer is that which you will already
have gathered from my argument on another ])oint; namely: that the
Commissioners had nothing to do with the questions of right, and
that Article VI expressly stipulates that there shall be a distinct deci-
sion by the Arbitrators upon those live questions. That is answer
number one.

Answer number two, equally clear and equally conclusive: That if
the Commissioners had agreed in their report, and had agreed in their
recommendation, not only does this Treaty not make it obligatory upon
the Arbitrators to accept and act upon that report, but it in express
terms shows what was to be the relation of that report to their consid-
eration, and to their decisions on the question of regulations. Article
VII has in express terms said that the report of the Commissioners
was not to rule them, was not to be a matter which they were to ado[)t
as a matter of course, without exercising their own judgment upon it,
but was a matter to aid them in their determination upon the question
of regulations.

Therefore my answers, as I submit, are clear and complete. It was
not the contingency of there being an arbitration at all, for the two
reasons I have given, whi(;li I hope 1 have made intelligible to the
Tribunal, and which I do not desire to repeat.

ARGUMENTS ON PRELIMINARY MOTIONS. 57

The contiii.i»eiicy was the contingency of the five questions being
decided in the fiishion which should render the concurrence of Great
Britain necpssary. That was the contingency contemphited in the first,
as it was the contingency contemplated in the last part of Article IX.

Indeed, the latter connection in which the word "contingency" is
used even more strongly makes the force of this contention which I am
submitting apparent, because the words are: "These reports shall not
be made public until they shall be submitted to the Arbitrators, or
(until again understood) it shall appear that the contingency of their
being used by the Arbitrators cannot arise." Not the contingency of
there being an arbitration, which arbitration by the preceding provi-
sions is already constituted.

If it had not been for the introduction of certain other topics, I
should, Sir, have felt myself justified in sitting down; but I suppose
that I ought to refer to the other toi>ics that have been dealt with by
my learned friend.

I>et me, however before I leave these Articles, make some reference
to a very — if I may respectfully say so — acute comment thrown out by
one of the members of the Tribunal, a comment which I confess seems
to me, as far as I can Judge, to be well founded in one particular. I
understood that comment to amount to this — I do not regard it as the
judgment even of the individual member of the Tribunal; but I under-
stood it to mean; that the report contemplated by Articles VII and IX,
to be a report within the meaning of those Articles, ought to be a
report which might turn out to be a joint or a several report, but which
whether a joint or a several rejiort, should be founded upon a joint investi-
gation. I understood that to be the suggestion.

Senator Morgan. — I intended to put that as an inquiry.

Sir Charles Kussell. — / am not at all sure that that is not perfectly
sound. I am not at all sure that when we come to examine these reports
of the Commissioners on both sides it will not be found that they will not
stand the test; and that applies equally to the reports of the Commis-
sioners on the part of the United States and to the reports of the Com-
missioners representing or appointed by Great Britain.

Mr. Justice Harlan. — I suppose you are familiar with the report
now being talked of — the supplemental report?

Sir Charles Russell. — Yes.

Mr. Justice Harlan. — Can you tell us — for we have not yet had it
before us officially— whether it is a separate report, based upon the
joint investigation that was made in 1S91, or is it a report based upon
a subsequent independent investigation in which both Commissioners
participated?

Sir Charles Russell. — As far as I can judge, partly on one, and
partly on the other. My learned friend said that he had not read the
report; and indeed in the letter by which the United States Agent, my
friend Mr. Foster returned the report, it was stated that it was unread.
Tliat being so, my learned friend Mr. Phelps said that somebody or
other who I do not know, has told him that it contains a number of
new dei^ositions. AJl 1 can say is that it is not an accurate description
of it.

Lord Hannen. — Sir Charles, will you allow me to call your attention
to a passage in the seventh Article which I do not think you have com-
mented upon? What construction and efiect do you give to those last
words " witli such otlier evidence as either Government may submit"?

Sir Charles Russell.— I am coming to that, sir.

Lord Hannen. — I beg your i)ardon.

58 ARGUMENTS ON PRELIMINARY MOTIONS.

Sir Charles Kussell. — I had not at all forgotten tliat; and 1 am
now leading' u]) to it, as you will see in a moment.

I was considering at the moment what one of the Tribunal said as to
the necessity of these reports being founded upon a joint investigation,
although they might be separate reports. I would like further to point
out that I do not myself think that it was intended — but I do not
myself see that these reports were intended to be invested, I do not
use the words in any way profanely, with any peculiar character of
sanctity, or that any very peculiarly great moral weigiit was necessa-
rily to be given to them beyond what their intrinsic contents would
justify. I have pointed out they were to be mere aids to the Tribunal.
They were not to be the rule for the Tribunal. They were to assist the
judgment of the Tribunal, not to dictate what that judgment should
be; and here I immediately come to the point suggested by Lord
Hannen.

If that be so, it becomes eutirely unimportant — and this I say in
favor of the United States Commissioners' report as well as in support
of the Commissioners of Great Britain — it becomes comparatively
unimi)()rtiint to inquire whether these reports were founded upon a
joint investigation or u])on several investigations. They may have
failed to comply with the direction given in Article IX; but if they
supply means of information to enlighten the judgment of this Court
upon the subject of regulations, with which alone they are conversant,
then they come under the head of "any other evidence which either
Government may submit;" and I do not shrink from putting my propo-
sition as high as this: that up to the last moment, when discussion is
taking place on the subject of regulations, if either party can put
before this Tribunal matter which may, and in the opinicm of the Tri-
bunal ought, to affect their judgment upon the character of those reg-
ulations, it is within the competence of eitlier to do it. You will say,
according to the authority inherent in you, when the point has been
reached when you desire to retire to your chamber and consider the
questitm of regulations; but I say up to that moment — I put it as high
as that — you ought to seek, and you certainly would be entitled to seek,
for any information which can be put before you by either the repre-
sentatives of the United States or the representatives of Great Britain
which may help your judgment upon the question of regulations.

Now the answer which my learned friend makes and that upon which
he bases his argument, is upon the ground of what he has been pleased
to call manifest injustice. Indeed, I think he said "outrageous injus-
tice". I think he used both expressions. That does lead me, really to
ask the Tribunal to consider what is the constitution of their own body.
I have pointed out that it is undoubtedly clear that as regards certain
of these questions, which I have denominated and again, for brevity,
denominate questions of right, they are simply to decide as judges and
as jurists. 1 reaffirm thgt proposition; but when I come to the further
question of what rules of evidence are to guide them in the determina-
tion of those questions of right, I have only to point to the Case of the
United States, to the Appendices to the Case of the United States, to
the Counter Case of the United States, and to the Appendices to the
Counter Case of the United States, in order to show you and make it
demonstrable that there is, in the view of those who represent that
great community, and that there is, according to the constitution of
this Tribunal, power to lay before this Tribunal what is not legal evi-
dence in a court of justice.

AEGUMENTS ON PRELIMINARY MaTJONS. 59

Let me illnstrate it. Yon have seen in the appendix to the Case a
nninber of depositions of native Indians and other ])ersons who piofess
to be more or less experts npon the question of the i)ursuit of seals.
We have not had the o[)portnnity of testing by the ready test of Cross-
Examination one sinoie one of those witnesses. We have not had the
opportunity of inquiring- into the character, the antecedents, the "trust-
wortliiness" — to nse my learned friend's expression — of any one of them:
and yet we are — because the exi,<>eucies of the case require that we
sliouid, and because the constitution of this Tribunal coutemplates
tliat we should — willing that all that, quantum valeaf, shall be regarded
and taken into consideration by this Tribunal, this Tribunal Aveighing
the evidence by such means as are available to them, discounting it
where they have reason to suspect motive, or where they see intrinsic
irai)robability: contrasting it with the evidence upon the other side,
and by this means, (altltough not strictly legal evidence), arriving at
what they will, in the result, regard as reliable and solid information
npon which their judgment may be rested. I turn to the Counter Case,
and really in view of what I must be permitted to call the extravagant
expressions of my learned friend Mr Phelps as to the iniquity of our
putting something forward which they have had no opportunity of
answering, I do not understand how my learned friend can reconcile it
to his moral sense to put betbre this arbitration the mass of matter
which is to be found in the Counter Case, and which we have had no
opportujiity of answering.

Xow let me make clear to the Arbitrators what I mean by this, I
ought, to tell you how it is said this is justitied. It is said that this is
by way of answer to the Case of Great Britain. Well of course that
is a mere fagon de purler. None of it purports to be in answer to
specific allegations in the British Case, and it only needs reference to
any part of this book to see that if there be injustice of the kind which
my learned friend insisted npon, it relates to all that i)ortion of the
United States Counter Case which I have separated from the rest and
which runs with the exception of a few pages from page 135 to the end
of the volume, what do I find there. I find there reports, amongst
others — I am merely taking these as illustrations — of a Captain Hooper
made in August of 1892, September of 1892, one of a Captain Coulson
of the Cth September 1892, one of a Mr. Evermann of the 28th Septem-
ber 1892, one of Mr. Stanley-Brown of the IGth December 1892, and I
find depositions of a nnmbcr of witnesses whom we never heard, whom
we have had no opportunity, I need not say of cross-examining or of
inquiring into, extending from i^age 300 odd on to I think page 400.
Therefore really this ciy of injustice is as I conceive not in fact well
founded. But I want to go a little further. It is said by my friend,
not only is this Supplementary Report ottered in evidence, but it is
offered in evidence under circumstances in which it is sought as a sup-
plementary Commissioners Report, to give it a special sanctity or
character. I think the expression my friend used was " to put it on a
higher plane". Let me absolutely and at once disclaim any such sug-
gestion. I claim no special value by the reason of the fact that these
were Commissioners appointed by Great Britain, beyond intrinsic
value, after weighing their statements, contrasting statements on the
same subject by witnesses on the part of the United States and judging
of the inherent weight and probability and prower of self-recommen-
dation which staten)ents themselves contain — I claim in a word no
other weight than the intrinsic merit of the thing itself demands.
Thus I come back to my idea of a few moments ago, that we seek to

60 ARGUMENTS ON PRELIMINARY MOTIONS.

put this in evidence which under Article VII may be received by this
Tribunal under the title of " such other evidence as either Government
may submit," and let me say that I do not recede from, but stand by,
what 1 said, that up to the moment that you retire to consider the ques-
tion of Jle^ulatious, after you shall first have decided, as the Treaty
requires, tlie five questions of right, raised for your distinct decision,
it is within the competence of this Tribunal to receive any evidence
offered by either Grovernment which has any valuable light upon and
in relation to the question.

The President. — Do you construe this as meaning legal evidence
or information?

Sir Charles Russell. — Information merely.

The President. — Not legal evidence.

Sir Charles Kussell. — Not legal evidence.

The President. — The words are, " with such other evidence as either
Government may submit." You do not construe that as implying legal
evidence.

Sir Charles Russell. — No, Sir.

Lord Hannen. — None of this was legal evidence, because it would
not be subject to cross-examination.

Sir Charles Russell. — Not subject to cross-examination.

The President. — The construction goes rather far. One would like
to know how far it goes, and how far it does not go.

Sir Charles Russell. — Certainly, Sir. Let me make that position
clear because T think it lies at the very root of this matter. If this is
a matter which at all weighs upon the mind of the Tribunal, or of any
one member of the Tribunal, I would desire to enlarge upon it, and to
enlarge upon it simply by saying that there is no part of the evidence
submitted on one side or the other which is legal evidence. The United
States has no legal evidence.

Senator Moroan. — Why is it called "evidence" then?

Sir Charles Russell. — Because it is evidence. It is called evi-
dence because it is evidence.

Senator Morgan. — Without being legal.

Sir Charles Russell. — Without being legal certainly.

The President. — Even for the legal points.

Sir Charles Russell. — Even for the legal points. So far as the
legal points are concerned our position, and I must enlarge upon that
presently, is clear. We say, as regards the first four questions, namely
those relating to what I have called the derivative title, or the title
founded upon estoppel, that they involve no questions of law that are
really likely to cause, I think, any doubt or any diiificulty, or I will ven-
ture to say, although I may be sanguine therein, any difference between
those who represent the United States, and those who represent Great
Britain.

Mr. Justice Harlan. — What questions are those?

Sir Charles Russell. — The first four. They depend upon construc-
tion of public documents., and upon historical facts — those first four ques-
tions. As regards the 5th question, there I agree there is a difference.
We come there, undoubtedly to vexed questions, but in our submission
and in our judgment — and it is the position we have taken in the orig-
inal Case, and the position that we adhere to — so far as they depend
upon any facts, those facts are not in dispute, and it is upon the ques-
tions of law applicable to facts that are not in dispute that the decision of
question 5 depends.

Senator Morgan. — Do you mean Municipal law., or International law?

ARGUMENTS ON PRELIMINARY MOTIONS. 61

Sir Charles Kussell. — I mean both. It is jinticipating; but as the
member of tbe Tribuual bas ineutioiied that, I may perhaps avail myself
of the opportunity of pointing' out that the title to property can only have
its root of title in Municipal laio.

Senator Morgan. — That is what I understand your Counter Case to
contend for.

Sir Charles Russell. — Yes, it can only have its root of title in
Municipal law. It may be that if there is a dispute between the Munic-
ipal laM' of America and the Municipal law of Great Britain, Interua-
tion.al law may have a voice in saying which law — which Municipal law
is to rule. It may be that International law may have an important
voice in saying what are the sanctions which International law will rec-
ognize in relation to the rights of jtroperty within Municipal law.

It may be also that International law, where the Municipal laws con-
flict, will decide between them. The law of America, as you all know,
finds its source and derives its strength and its history from the Com-
mon law of England. The Municipal law of each country is the same;
and the root of title to i)roperty must depend upon Municipal law; and,
where those Municipal laws agree, the function and part that Interna-
tional laws play in that controversy is indeed a very little one. How-
ever, that is aside from the question which I am here discussing.

Mr. Justice Harlan. — Whether it depends on Municipal law or
International law, how far does the question of the right of property
depend upon the facts of seal life?

Sir Charles Russell. — I have said that, in my judgment, so far as
the facts of seal life are material for the question of law as to property
in seals, they are not in dis])ute.

Mr. Justice Harlan. — When we come to determine the question
whether the United States has any right or property in these seals or
in the herd, do we consider and ought we to take into consideration the
facts in seal-life'?

Sir Charles Russell. — Certainly. So far as they are material, cer-
tainly.

The President. — I think we had better leave that for the moment
and argue on the points now before us.

Sir Charles Russell. — I should say so. I have been led away
from my argument.

Mr. Justice Uarlan. — The question which I put to Sir Charles Rus-
sell was exactly in the line of the argnment that he was making.

Sir Charles Russell. — Quite so. Sir. I hope nobody thinks that
I complain of any question or interruption.

The President. — I think. Sir Charles Russell, you rather swerved
from the original plan of your argument.

Sir Charles Russell. — Well, Sir " swerving," rather implies " shy-
ing" from it.

The President. — l^o.

Sir Charles Russell. — I have been a little induced to go out of
the line but I have not swerved from the proposition.

The President. — I do not say that the fault was yours.

Mr. Justice Harlan. — Sir Charles Russell was discussing the ques-
tion of the right of property, and upon what it rested.

Sir Charles Russell. — Do not for a moment. Sir, suppose that I
complain. I do not.

Mr. Justice Harlan. — And the question I propounded to him was in
the exact line of his argument and I did not intend at all to swerve
him from that hue of argument or to divert him. It is exactly in the

62 ARGUMENTS ON PRELIMINARY MOTIONS.

line of tlie question wLicU he is discussing and which we are to con-
sider.

Sir Charles Eussell. — Well, Sir, may I be excused from making
any comment on that; beyond saying that I do not at all complain
whetlier it was in the line of my argument or whether it was not in the
line of my argument.

Mr. Justice Harlan. — I did not understand you as complaining.

Sir Charles Russell. — No, not at all ; but I was in this, sense taken
away from the point which I was upon, — the point of what is the mean-
ing of the word " evidence". I did not anticipate that I should be
called upon to go into this question etymologically; but I think as it
has been adverted to, perhaps th6 readiest answer and the most prac-
tical answer is to state tbis broad proposition, that there is no part of
the so called evidence in the United States Case, in the Appendix to
the United States Case, in the United States Counter Case, — excepting
always documents of a i)ublic character, — there is in the wliole mass of
it not one item tbat would be legal evidence in a Court of Justice over
which any of the distinguished judges who are here miglit preside if he
were either in America or in Great Britain. In other words, the volume
of material that has been put before the Court satisfies none of those
tests, — amongst others the great test of cross-examination, — wiiich
according to the systems of judicature prevailing both in England and
in United States woukl make it receivable as strictly legal evidence if
tendered. Now I hope I have conveyed my meaning.

Well then if that is so, I think the Tribunal will see — I think you,
Sir, cannot fail to see, — that wlien you are dealing with two countries
whose system of law and judicature is substantially the same, and
when tliey have by the preparation of their Case and their Counter
Case and their Appendices treated as matter of an evidenciary charac-
ter to be put before this Tribunal matter which does not come up to the
test of legal evidence, the word " evidence" in the seventh Article does
not mean evidence which a Court of Law in either Country would
receive if strict objection were taken.

But now, Sir, I have not yet, I am afraid, concluded. If I am right,
the conclusion so far of course is this, that when the question of regu-
lations comes on the tajiis, when the point has been reached, at which
alone the Tribunal are coini)etent to consider the question of regulations,
then they are entitled to avail themselves of any class of evidence within
the wide description I have given to it to aid them in that question of
regulations, and that evidence may be submitted on the part of either
Government. And in connection with the right of either government
up to the last moment to lay any matters before this Tribunal upon the
question of regulations, let me point out two things. First of all you
are aware, because it is part of the Treaty of Arbitration, and referred
to in tlie Treaty of Arbitration, of one of the matters which comes
before you ultimately for determination, namely, certain claims under
the modus viveiidi of 1892. The modus vicendi of ISOU is I presume in
your minds.

The President. — Yes. We have a special Treaty for the modus
Vivendi.

Sir Charles Russell. — Quite right.

Senator Morgan. — It is hardly a special Treaty, it is made a part of
the Convention.

Sir Charles Russell. — It is made a part of the Convention but it
is of a separate date and in a separate document.

AEGUMENTS ON PRELIMINAKY MOTIONS. 63

Senator Morgan. — The ratifications of both were exchanged at the
same lime — i)robably at the same moment.

Sir Charles Kussell. — I have no doubt, Sir, that you are right.

The President. — It is part of our law — I mean the law which insti-
tutes this Tribunal.

Sir Charles Kussell. — Quite. It is immaterial except to point
out that the Treaty of Arbitration is dated 29th February, 1892, and
the Modus vivendi or convention is the 18th of April, 1892. I am not
challenj^ing the correctness, of course, of what you say on the matter.
Tlie point 1 am u})on is different.

The President. — Both were ratified together.

Sir Charles Kussell. — So, Sir, it has just been stated.

The President. — The ratifications were exchanged together.

Sir Charles Kussell. — I point out that under Article IV, in order
to facilitate proper enquiries on the part of Her Majesty's Government
with a view to the presentation of the case and arguments of that Gov-
ernment before the Arbitrators, it is agreed that suitable persons will
be permitted at any time, upon application, to visit or remain upon the
seal islands during the sealing season for that jiurpose. That is April
of 1.S92.

The President.— The 18th of April, 1892, is the date of the Treaty.

Sir Charles Kussell. — That I have stated. Sir, — the 18th of April,
1892. What I want to point out, Sir, is that all the complaint of my
friend here is that we were bound to set out in our original Case all that
we had to say — all that we had to say both on the questions of right,
and upon the questions of Kegulations. You recollect that. That is
my friend's argument. Very well; but here in April of 1892 is a pro-
vision that in order to enable the Government to present its case, facili-
ties are to be given to visit the islands. That is April 1892. I need
not remind you — You know enough of the history of the case to know —
that the period as to which it is important, and the only important
l)eriod in order to judge of the characteristics, so far as they are material,
of seal life in the islands is the breeding season, June, July, August
and September, and that those are the four months within which are
embraced the fullest, the best, and the most complete opportunities for
the inspection of seal life. And yet, my friend's contention is that even
upon the question of regulations we were to be bound to deliver a Case
by the 3rd of September of 1892. When you recollect the remoteness
of Alaska to begin with, and the remoteness of Pribilof Islands from
Alaska, it is obvious that it was contemplated by these y)arties that
there should be a much extended opportunity, so far certainly as ques-
tions of regulation were concerned, of affording such information, and
such assistance to this Tribunal on the question of regulations as a
prolonged enquiry might give them.

Senator jM(jrgan. — But did not the 60 days which you had a right to
claim amply provide for that?

Sir Charles Kussell. — No, I do not know that that would neces-
sarily provide for it all. Sir, supposing they had extended it 30 days
more, which is the period.

Mr. Carter. — 00 days.

Sir Charles Russell. — To begin with. Sir, the period which is con-
templated for extension is 30 days additional, not 60.

Senator Morgan. — Not exceeding 60 days.

Sir Charles Kussell. — I say, Sir, that is an additional 30 days,
not 60 (lays whi(;h is contemplated, but tiiat does not refer to the ques-
tion of tue orig'iiuil Case at all but to the Counter Case ouly. My

64 ARGUMENTS ON PRELIMINARY MOTIONS.

friend's contention is that all this ought to have been in the Original
Case. You iollow, I think, that that is an answer to the objection. In
other words the case is to be delivered according to the terms by the
3rd of September, though we only got our authority to send to these
Islands under this Article in April of 1892. We get our authority
under the Convention in Ajiril of 1892.

Senator Morgan. — Was anyone sent to the Islands?

Sir Charles Russell. — Oh yes, and his Report appears in the
Counter Case.

Senator Morgan. — Ue got there?

Sir Charles Russell. — Oh yes — they were sent by both sides, and
both sides have submitted these Reports in their Counter Case. Both
have done the same thing. My friends, as clearly as we have, have
dei)arted from the idea, that the whole case was to be put out in the
original Case. They have chosen, ot course, to say that a gi-eat deal in
their Counter Case which is new is by way of answer, but then you can
say that anything is by way of answer. It is strictly correct in sense
one — everything may be said to be by way of answer, but only in tliat
sense. But the question of Regulations stands upon an entirely differ-
ent footing, which I have endeavoured more than once to make clear,
and if I have not succeeded in making it clear up to this point, I should
despair of making it clear by any mere process of discussion.

But now. Sir 1 want to refer to another matter. My friend Mr. Phelps
says "Oh but there is another objection that 1 have to the admissibility
of this Supplementary Report"; and that objection he says is this: the
Article provides for a Report, if they can agree, to be made jointly —
if they cannot agree, for joint and several Reports; and he says, hav-
ing made one Report, which we have already furnished to them under
the circumstances which I will explain, they cease to be vested with
authority to make any other Report. They became jmicti officio^ my
friend would say. Well, Sir, I do not care to stop to consider even that
question. I myself do not see any reason why they may not make
several Reports if they are so minded. I do not see anything in the
Treaty which compels them to exhaust their functions in one Report;
but let that pass. I base the claim to the admissibility of this docu-
ment, not by reason of any sanctity attaching to it, because it comes
from the Commissioners, but as being evidence — "other evidence" within
the meaning of Article VII directed and intended to inform the minds
of this Tribunal upon the question of Regulations when and if that
question shall arise.

Senator Morgan. — But, Sir Charles, it might still be evidence might
it not, and not have found its way into the record in due season according
to the Treaty.

Sir Charles Russell. — Perfectly, that is my whole contention, Sir.
You have put, in one sentence, my whole contention, that, as regards the
questions of Regulations, there is, as contained in Article VII, provision
which has not relation to the rest of the Case; that is to say, ichen the
Arbitrators come to exercise judgment, which is not judicial, which is not
juristical, then they are to seelc such evidence as either Government can
place at their dispositioti — any matter ichich will have the tendency to affect
or help their judgment upo7i the question.

Senator Morgan. — I beg to say that I have been misunderstood if I
am supposed to have stated in any way that the power to ordain Hegu-
lations exists only upon a certain condition and to be exercised at a
certain time.

Sir Charles Russell. — ^I am not sure that I follow you, Sir.

ARGUMENTS ON PRELIMINARY MOTIONS. 65

Senator Morgan, — I say that I liave been misunderstood if I liave
been supposed to insist that the j^ower to ordain Regulations exists
only upon certain conditions and at a certain time, — if Counsel will
allow me to say so— if this Tribunal should come out with an award
in which the Eegulations should be adopted or established, and the
award should fail to fiiul the existence of any of these comlitions prece-
dent, as they are alleged, I think that that award would be unassailable.

Sir Charles Eussell. — I am not prepared to say, Sir, that the
award requires the recital of any conditions.

Senator Morgan. — If it does not then it rests with the Tribunal to
say whether the conditions have occurred, and at what time they will
decide the matter.

Sir Charles Eussell. — Undoubtedly, always as far as the Treaty
does not in express terms state the way in which those questions are to
be dealt with.

Lord Hannen. — The Tribunal is required to find on those five
questions.

Sir Charles Eussell. — No doubt.

Senator Morgan. — Not as a conditioji precedent.

Sir Charles Eussell. — As a condition i)recedent.

Senator Morgan. — I insist the other way.

Sir Charles Eussell. — I am afraid now that I must make the
charge that 1 am being diverted from the point that I was making.

Senator Morgan. — I understood that Counsel quoted me as having
said the establishment of the condition 'precedent was a necessary founda-
tion of the jurisdiction and power of this Tribunal to make the Aumrd on
the determination of Regulations.

Sir Charles Eussell. — My learned friend, Mr. Phelps, may have
so cited you, that I do not recollect, I certainly did not, and I do not
think my learned friend did either. I content myself with reading what
is plain English, and that plain English is, that the decision of the Arbi-
trators, a distinct decision, shall be given on each of the five questions.

Senator Morgan. — In their final Awardl

Sir Charles Eussell. — I will come to the question of the final
Award, or interlocutory Award in a moment, that is not the point 1 am
upon, — they shall give a distinct decision on each of those five questions.

Senator Morgan. — But only one Award.

Sir Charles Eussell. — I will come to that in a moment, but that
they shall give a distinct decision, I, for the third time, repeat on those
five questions, and, it is only if the determination of those five ques-
tions shall leave the subject in a condition in which the concurrence of
Great Britain is necessarj^, then and tlien only, the Eegulations are
necessary, and, whether a particular member of this Tribuiuil thinks so
or not, that is my very respectful, clear and resolute submission.

Senator Morgan. — I was merely setting* myself right about it, as
Counsel have alluded to the subject, I uiust say I have not intimated
the subject to be considered, was anything less than the subject as to the
preservation of seal life, not in Behring sea, but in any ivaters to which
they might resort.

Sir Charles Eussell. — I think that latter observation is not ger-
mane to the matter in controversy noAV, but, as it has been adverted
to, when the j)roper time comes, I shall hope to demonstrate that the sole
area of dispute from the Jirst moment the dispute arose down to the last
moment, was Behring sea, and Behring sea only. But I do not wisli to
be led away at this moment.
B S, PT XI 5

Q6 ARGUMENTS ON PRELIMINARY MOTIONS.

I must advert, still trying to bear in mind tlie point I was npon, to
the suggestion of my learned friend that the Commissioners after they
made tiieir first Eeport were functi officio. I have told tlie Tribunal
why I did not think that important, because I do not ask this Tribunal
to attach any peculiar character or importance, or to place tliis Sup])le-
mental Eep<>rt npon any liigher plane, than any other evidence that
might be olfered to them for the question of Eegulations with which
alone it is conversant.

The President. — You mean that you put the Supplementary Eeport
upon the same plane as the first?

Sir Charles Eussell. — Well, I myself think it is not upon any very
high plane and 1 will tell you why. Let me j)oiut this out.

The President. — As to Article IX"?

Sir Charles Eussell. — Let me call your attention to this Article
IX : " The four Commissioners shall, so far as they may be able to agree,
make a joint Eeport to each of the two Governments, and they shall
also report either jointly or severally to each Government on any points
on which they may be unable to agree." Then I want to know, is a
peculiar sanctity or importance to be given to the Eeports in which
they differ, according to whether they come from the United States or
Great Britain? The very fact that they are, as the event has turned
out to be, and as one might well have supposed it would be, unable to
agree in the Eeport, and take different views, and report in different
language according to the stand point they take, — you cannot exteud
to two sets of discordant and disagreeing Eeports, — you cannot to each
extend any peculiar sanctity or place them on any peculiar plane.

I-ach must stand on its merits, and the premises on which it is based
and tlie value the Tribunal tfiinks in the consideration of those Eeports
they respectively deserve, — no more and no less, and all this about
special sanctity, or peculiar character, or high plane, or low plane, may
be dismissed from this controversy as of no real moment whatever.
The Treaty is contemplating Eeports as wide asunder as the poles, and
yet you are supposed to impart equal sanctity, and place each on an
equal i)lane free from criticism. All is to go before the Arbitrators, if
they disagree, the Arbitrators are to say to which they give effect, and
how far they are to give effect.

I still have not said what I want to say on the fimcti officio point. It
is this. That my learned friends did not themselves conceive that their
Commissioners were functi officio when they made their first Eeport, is
clear, because ray learned friends will find that they have under a dif-
ferent date included in the documents which they have put in their
Case, three Eeports of different dates from their Commissicmers. Very
well. .

Now I pass from that which I consider a very small point.

Mr. Phelps. — One is the joint Keport.

Sir EiCHARD Webster. — No, they are separate Eeports.

Sir Charles Eussell. — If the joint Eeport is -to be regarded there
are three. There is the joint Eeport which may be said to be a Ee])ort
in which the United States and British Commissioners agreed to differ,
and two separate Eeports by the United States Commissioners besides.

Now, it remains fur me, before finally leaving this question of the
meaning of "other evidence" witliin Article VII to beg the considera-
tion of the Tribunal to these two points. I have pointed out in the C-on-
vention of April 18JJ2, facilities were given to the Eepresentatives of
Great Britain to elaborate by further eiupiiry and examination this
question of seal life so far as it had an inq)ortant bearing either on the
question of property, or upon the question of Eegulations.

ARGUxMENTS ON PREL,IMINARY MOTIONS. 67

You will, of course, undeistaiid wlieu I say that as far as the Sup])le-
uieutary Eeport, the admissibility of which is now alone in question,
that is conversant, and oflered only as conversant with the question of
Regulations and Eegulations only, and I have pointed out in April 1892,
recollecting the season in which observation can be made is June, July,
August and September, and regarding the remoteness of the region in
({uestion, and the infrerjuency of means of communication, that the
parties obviously intended that the information to be derived from that
further opportunity for examination should be in some way available.

I have a further observation to make that I would respectfully urge
as having a most material bearing on Article VII. You are aware that
the Conventiou of 1892 was the second Convention in the nature of a
modus Vivendi. You are aware that under the first Convention, as
under the second, restrictions were submitted to by the United States
as to the extent of its slaughter of seals upon the Islands themselves,
and that the citizens or subjects of Great Britain submitted to restric-
tive regulations of a severe kind upon the question of pelagic sealing.
Is it to be said with any show of reason that if the result of that experi-
ment, if the result of the action of these two Conventions in the nature
of temporary arrangements did throw any useful light upon the ques-
tion of what Kegulations should be ordained by this Tribunal, that this
Tribunal is to be shut out upon that question of Eegulations from the
consideration of that which would have a clear and a direct bearing
upon what ought to be the exercise of their discretion in the matter of
Regulations itself? I repeat it might be, I do not affirm that it was,
but that there might have been such evidence of the etfect of the opera-
tions of either the modus vivendl of 1891 or of 1892 as might have thrown
the most valuable light on the character of the Regulations which this
Tribunal should ordain; and I say again, and it is the last observation
that I shall make on that topic, that I do not the least recede from the
position which I submit is an invulnerable one, that on the question of
Regulations this Tribunal has no right to shut out from its considera-
tion, upon its merits, any evidence ottered by either Government up to
the very moment that this Tribunal retires to consider the questions of
Regulations.

]S[ow I have one more duty to discharge before I sit down, and that
is to show that the positions which I have taken up in this argument
are the positions which the Government of the Queen took up in its
original Case; that it is the position which it maintained when the dis-
cussion arose in the interval between the original Case and the Counter
Case; and I do that not merely to prove the consistency of our positions,
but to show to this Tribunal that the United States Representatives
had from the first to the last notice of the plan which we were jn good
faith and with deliberation pursuing. I refer first in that conuec^tion
to the Case originally presented. You will recollect that that case was
presented on the 3rd of September, 1892, and at page 10 of that Case,
the 5th Question of property ami protection, is referred to, and those
who prepared the Case proceed thus:

"This will be brieiiy considered, but the proposition which appears
to be embodied in this question is of a character so unprecedented
that in view of the absence of any precise delinition it is impossible
to discuss it at length at the present time. It will, however, be treated
in the light of sucL official statements as have heretofore been made
on the part of the United States, its discussion in detail being neces-
sarily reserved till such time as the United States may produce the
evidence or allegations upon which it relies in advancing such a claim".

68 ARGUMENTS ON PRELIMINARY MOTIONS.

I do not stop to consider whether the advisers of the Queen were right,
or whether they were wrong in that position. Tlieir view was that this
was a claim, and is a chiiin, novel and unprecedented, that the onus
lay upon those who put forward a claim so novel and unprecedented, to
justify it by facts and by arguments, and that the onus was not upon
Great Britain to disprove — the onus was on the United States aifirma-
tively to prove.

Then it proceeds to the question of Regulations, and it sets out Arti-
cle VII, and then it goes on: "The terms of this Article make it neces-
sary that the consideration of any proposed Eegulatious should be
posti)oned until the decision of the Tribunal has been given on the
previous questions. Beyond, therefore, demonstrating tlmt the con-
currence of Great Britain is necessary to the establishment of any
Eegulations which have for their object the limitation or control of the
rights of British subjects in regard to seal-fishing in non-territorial
waters, it is not proposed to discuss the question of the proposed lieg-
ulations, or the nature of the evidence which will be submitted to the
Tribunal." That is at pages 10 and 11 of the original Case. On page
135, Chapter VIII, of the same Case, in relation to the question of prop-
erty and protection, it is there stated: "The claim involved in this
question is not only new in the present discussion, but is entirely without
precedent. It is, moreover, in contradiction of the x>osition assumed
by the United States in analogous cases on more than one occasion.
The claim appears to be in this instance made only in respect of seals,
but the principle involved in it might be extended on similar grounds to
other ammnlsfercBnatiira', such, for instance, as whales, walrus, salmon
and marine animals of many kinds." And then it proceeds to say
that these being admittedly animals/errt? naturce, it was the duty of the
United States if they sought to make a claim to property in relation to
them to establish their grounds consistently with a Municipal law of
their own or any other country.

Then that subject is dismissed with this final note. "In the absence
of any indication as to the grounds u])on which the United States base
so unprecedented a claim as that of a right to protection of or property
in animals/errt.' nattirce upon the high seas, the further consideration of
this claim must of necessity be postponed; but it is maintained that,
according to the principles of International law, no property can exist
in animals /mt? natnrce when frequenting the high seas". And finally,
in relation to Eegulations, which is the matter which I have more
immediately in hand, it proceeds — "Great Britain maintains, in the
light of the facts and arguments which have been adduced on the
points included in the Gth Article of the Treaty, that her concurrence
is necessary to the establishment of any Regulations which limit or
control the rights of Britisli subjects to exercise their right of the pur-
suit aiul cai)ture of seals in tlse non-territorial waters of Behring sea.
The further consideration of any proposed Regulations and of the evi-
dence ]n'oper to be considered by the Tribunal in connection therewith
must of necessity be for the present postponed". It is clear therefore,
what was the position (it cannot be (loubted) bond tide taken up by the
repi'esentatives and advisers at tliat time of the Crown as to the
])roper position in this (juestion.

Then we come to the correspondence wldch took [dace between Mr.
Foster and the representatives of the Qneen in Washington in Septem-
ber 181)1^, after the Case has be(Mi delivered. Mr. Plie!])S has nheady
i-etcrred to this matter, but I must follow it up. TIh^ pith of Mr. Fosters
complaint is contained in tiie secojid paragraph of that letter, and 1 am

ARGUMENTS ON PRELIMINARY MOTIONS. 69

reading fromtlie Appendix to the Counter Case presented on behalf of
the Queen, Vohime I, page 1. — " I am now directed by the President to
say that he has observed with surprise and extreme regret that the
British Case contains no evidence whatever touching the principal facts
in dispute upon which the Tribunal of Arbitration must, in any event,
largely, and, in one event entirely, depend. No proof is presented upon
the question submitted by the Treaty concerning the right of property
or pro]ierty interest asserted by the United States in the seals inhab-
iting the Pribiloflt' Islands in Behring sea, or upon the question also sub-
mitted to the Tribunal of Arbitration concerning the concurrent Regu-
lations which might be necessary in a certain contingency specified in
the Treaty." That is the pith of the letter, which view, so expressed,
he proceeds to argue at length. I will only say now in passing that I
regret, and ho])e he regrets, one statement made in that letter.

It is the statement which is to be found on page 4 of the same corre-
spondence, in which he suggests, and if I did not misunderstand him
my learned friend, Mr. Phelps, today — No, I am wrong upon that; I do
not think he did; I thought he did, but he did not, — it is a statement
which Mr. Foster thinks it right to make, or a suggestion, that our
Commissioners, the Commissioners of Her Britannic Majesty, have
made up their Eeport not according to their own views of what they
ought to report, but had taken advantage of the fact that the United
States Commissioners' Eeport had been presented with the United
States Case in order to concoct a Report which should be an answer to
the Report of the United States Commissioners. The language in
which he makes that very grave suggestion is this. "It was an advan-
tage which it is conceived was not intended to be afforded to either
party that in taking its evidence-in-chief, it should have the benefit of
the possession of all the evidence on the other side, as also that in
making up the Rej)ort of its Commissioners it should first be provided
with that of their colleagues representing the other Government in
resi)ect to those points upon which they have failed to agree." That
suggestion, of course, means what I have said; that the British Com-
missioners were going to do a dishonest and a dishonourable thing,
that instead of making their Report as they conceived it right to make
their Report, they were going to make a Report which was an answer
to the Report with which they had already been furnished by the
United States.

Now, I respcctfiilly commend to this Tribunal the perusal of Lord
Rosebery's letter to Mr. Herbert in answer to this argument and com-
plaint of Mr. Foster. It is to be found on page 4. Of course, it is not
for me to say, but I have listened with the attention it deserved to the
argument of my learned friend Mr. Phelps and I did not detect that
he had discovered any flaw in that argument of Lord Rosebery. Let
me call your attention to what he says. At the top of page 5 he says,
after drawing the distinction between the character of the questions.
" It will be noted that the seventh article of the Treaty refers only to
the Report of a Joint Commission, and it is by the ninth Article alone
provided that the joint and several reports and recommendations of
the Commissioners may be submitted to the Arbitrators, should the
contingency therefor arise. The event therefore on the happening of
which the Report or Reports and further evidence are to be submitted
is there indicated by the Treaty; — that event being the determination of
the five points submitted in the sixth Article unfiivourably to the claiin
of the United States, and so that the subject is left in such a position
that tlie concurrence of Great Britain is necessary for the purpose of
establishing proper Regulations.

70 ARGUMENTS ON PRELIMINARY MOTIONS.

It will be noticed further, that the inquiries of the Commissioners
are confined by Articles VII and IX to the question of liegulations,
and have no reference to the points raised by Article VI. It is clear
therefore that by the Treaty it was intended that the Report or Eeports
of the Commissioners should be produced, not as part of the Case upon
the questions stated in Article VI, but at a later stage and then only
in the contingency above referred to.

Then " with regard to question 5", — that is the property or protec-
tion point. — " of Article VI the Government of Her Britannic Majesty,
believing that the alleged 'right of property or property interest'
depends upon questions of law, and not upon the habits of seals and
the incidents of seal life, have stated propositions of law which in
their opinion demonstrate that the claim of such right is not only
unprecedented, but untenable. These propositions will be found at
pages 135 to 140, 153 to 157, and propositions 15, 16 and 17 on page 160
of the Case of this Government. This being the view of the Govern-
ment of Her Britannic Majesty, it would have been altogether incon-
sistent with it, and, indeed, as they conceive, illogical and improper, to
have introduced in to the British Case matter which in the opinion of
Her Majesty's Government can only be legitimately used when the
question of concurrent Regulations is under consideration." He then
enlarges upon those views and proceeds — and this is the point to which
I wish to bring this discussion now; " These are the views of the Gov-
ernment of Her Britannic Majesty, and they must maintain their cor-
rectness. But the Government of the United States have expressed a
different view; they have taken the position that any facts relevant to
the consideration of concurrent ReguUitions should have been included
in the Case on behalf of Her Britannic Majesty presented under
Article III, and that the absence of any statement of such facts in
that Case has placed the United States at a disadvantage. The Gov-
ernment of Her Britannic Majesty while dissenting from this view are
desirous in every way to facilitate the progress of the Arbitration and
are therefore willing to furnish atonce to the Government of the United
States and to the Arbitrators the separate Report of the British Com-
missioners with its Appendices.

The Government of the United States are at liberty, so far as they
think fit, to treat these documents as part of the Case of the Govern-
ment of Her Britannic Majesty.

He then deals, iu dignified and I think most courteous language,
with the suggestion to which I have already referred, the injurious
suggestion, and he expresses regret that it should have been made.
He meets it by shortly stating that the Report and Appendices so far
from being made to meet the Report furnished with the Case of the
United States in the words in which they are now (that is October,
1892), j)resented to the United States, were printed on the 21st of June,
that is to say, three months before we saw or could have seen their
Commissioners' Report, and "laid before the Queen in pursuance of
Her Majesty's Commission".

Then comes Mr. Foster's answer; and I think my learned friend did
not quite realise what was the effect of Mr Foster's answer. We
regard it as practically an assent to the position taken ui^ by Lord
Rosebery, an assent in this sense, that they were willing to take and
did take the Report of the British Commissioners as practically all
that we were going to offer on the incidents of seal life if and so far as
they had any relation to property. We do not recede from that. We
maintain the position still; that, so far as the determination of the

ARGUMENTS ON PRELIMINARY MOTIONS. 71

question of property interest iu iudividual seals, in so-called herds of
seals, or an industry carried on by the killing of seals goes, it stands
for judgment upon facts that are practically undisputed. The question
is, the principles of law that are applicable to those facts. In acknowl-
edging this, Mr Foster says "If, as I believe and assume, this Eeport
contains substantially all the matter which Her Majesty's Government
will rely upon to support its contentions" not as to regulation "in
respect to the nature and habits of fur seals and the modes of cap-
turing them; I entertain a confident hope that all further difficulty
upon the questions discussed in this note may be avoided." I answer
to that, that Mr Foster may assume we do not seek to disturb his
assumption, that in the document then communicated as far as we
believe any of the facts iu it are material ujion the question of proi)erty
protection, — we have no desire to add to that store of information,
whether it is ample or whether it is deficient: but, on the question of
regulations, we have never receded from the position, and do not recede
from the position, we did take up in the original Case and are entitled
to take up, and which is based on our construction, which we submit
is incontestably the right construction, that tiiat Article VII does, in
the matter of regulations, provide for tlie possibility and admissibility
of further evidence tendered by either Government.

He then concludes: "I deem it necessary, however, to say that the
Government of the United States will, should occasion arise, firndy
insist upon its interpretation of the Treaty, and that it reserves its
right to protest against and oppose the submission to a reception by
the Arbitrators of any matter which may be inserted in the British
Counter Case which may nut be justified as relevant by way of reply
to the Case of the United States." Our position is this, as far as our
original Case was concerned. We do not seek to supplement it by any
incidents relating to seal life which have any bearing on questions of
property except in so far as the new matter introduced in the Counter
Case is there introduced in the terms of Mr. Foster's qualification as
an answer to the allegations and statements and evidence put forward
in the Case of the United States; but as to regulations I do not depart
from the position I had previously assumed.

Now we get to the next stage of this matter which I wish to follow
out so that there may be no dispute. The moment came for the delivery
of the Counter Case. What do we do? In the Counter Case they fol-
low the same position consistently throughout. On page 3 of the
Counter Case there is this passage: "The subject of the regulations
(if any) which are necessary and the waters over which the regulations
should extend referred to in Article VII of the Treaty is considered in
Part II. For reasons more explicitly stated in correspondence which
will be found in the Appendix, the consideration of this point" — that
is regulations — "have been treated in this Counter Case" — Avhy"? —
"but only in deference to the wish expressed by the United States,
that arguments upon all the questions with which the Arbitrators may
have to deal should be placed before the Tribunal by means of the Case
and Counter Case. The Government of Her Britannic Majesty have
adduced these arguments under protest and without prejudice to their
contention, that the Arbitrators will not enter upon or consider the
question of the proposed Regulations until they have adjudged upon
the five questions enumerated in Article VI, upon which they are by
the terms of the Treaty required to give a distinct decision, upon the
termination of which alone depends the question whether they shall
enter upon the subject of regulations. Her Majesty's Government

72 ARGUMENTS ON PRELIMINARY MOTIONS.

reserve also their right to adduce further evidence on this subject,
should the nature of the argument contained in the Counter Case on
behalf of the United States render such a course necessary or expedi-
ent." They claimed that then, and I as representing tlie Government
now claim it as within the right provided for by the xlrticle VII to aid
the Tribunal, together with the Keport of the Commission — to aid them
with such other evidence as either Government" may upon the question
of the Kegulations "submit".

Again at page 166 D of the British Counter Case the question is
referred to and I think that that answers the question addressed to
us by one of your body as to when this position was taken up. I have
shown the position under the Original Case. I have shown the position
in the correspondence with Mr. Foster, and now the position in tlie
Counter Case: "Upon any discussion before the Tribunal upon the
subject of Kegulations, Her Majesty's Government will refer if neces
sary to the supplementary Report of the British Commissioners which
is now in course of preparation and will it is believed be presented to
Her Majesty's Government by the 31st of January 1893 " aud it was so
presented and bears that date. The succeeding Chapters have been
prepared in order that the Arbitrators may be put in possession of the
consideration of the other facts material to the consideration of the
question of Eegulations and of the reply on behalf of Her Majesty's
Government to the argument and allegations of fact contained in the
case of the United States with reference to pelagic sealing and the
management of the Islands in the jiast.

Now there is but one further stage of this controversy or discussion
and it is the correspondence which my learned friend in solemn tones
referred to this morning. That is the note addressed by the late Mr.
Blaine when he had ceased to be Secretary of State and when Mr.
Foster had succeeded to that position.

I refer with some reluctance to these questions of dispute between
two ministers, to each of whom I desire to attribute equally good faith.
I think it is unfortunate that these discussions should arise. I think,
moreover, that it is unnecessary that they should arise. As I have
said before, if you have ambiguity in a Treaty or any other document
you may even refer to extrinsic facts, or you may even refer to docu-
ments which led up to that Treaty or agreement, in order to clear up
the common ambiguity relating to subject matter and so forth, but in
this case the parties have definitely, in English which is clear and
intelligible to those used to construe English, exjiressed the purposes to
which both Governments are committed ; and 1 have therefore dealt,
as the main point and purpose of my argument, with the construction
of the Treaty itself as that which ought to guide the Tribunal. But
as my learned friend has felt himself justified in referring to this I am
bound to refer to the answer which was made by Sir Julian Paunce-
fote; I believe Mr. Blaine was very ill at this time. I think I am right
in saying that. It is addressed to Mr. Foster, and dated September
9th, 1892, and is at page 8 of the appendix to the British Counter Case.
I do not think it appears in the United States Case at all.

Mr. Phelps. — Mr. Blaine's does.

Sir Charles Russell. — Yes, but not the correspondence as a whole.
Mr. Blaine writes "After an arbitration had been resolved upon between
the United States and British Governments, a special correspondence
between the Department of State and Lord Salisbury ensued, extend-
ing from early in July to the middle of November, 1891. The various
subjects which were to be discussed, and the i^oiuts which were to be

ARGUMENTS ON PRELIMINARY MOTIONS. 73

deeided, by tbe Arbitrators iu the affair of the Behring sea were agreed
ui)on in tliis eorresiioiideiice. A month hiter Sir Julian Pauncefote the
British Minister aid myself arranged the correspondence, and reduced
the propositions and counter propositions to a Memorandum which was
signed by us on the 18th December. Subsequently, the questions which
had arisen between the two Governments concerning the jurisdictional
rights", and so on "were expressed in the form of a Treaty concluded
at Washington on the 29th February 1892 ; "—I do not think it is neces-
sary to read every word of this, because it is not material to the point;
but this is the important position.

"In all these steps, including the correspondence with Lord Salisbury,
the Memorandum concluded between Sir Julian and myself, and the
Treaty that was ultimately proclaimed on the 9th May, 1892, and which
was negotiated by Sir Julian and myself not one word was said or inti-
mated respecting the question now raised by the British Government
as to"— I want to call your attention to this extraordinary language—
"as to a secondary submission of evidence after the first five points set
forth in Article VI had been decided by the Arbitrators. It was never
intimated that any other mode of proceeding should be than that which
is expressed in Articles III, IV— and V of the Treaty. I shall be sur-
prised if Sir Julian Pauncefote shall differ iu the slightest degree from
this recital of facts".

I will read what. Sir Julian Pauncefote said in a moment, but there
lurks in this (though not so obviously) as in the argument of Mr. Phelps
the suggestion that we are here contending that there shall be two sepa-
rate awards. First two separate hearings and then two separate awards.
I do not say it would be outside the authority of the tribunal if they
thought right to deal with it in separate awards. I do not express an
opinion, nor is it necessary that 1 should one way or the other. But
what is necessary, is that there should be an expression of the deter-
miiuition of the five questions submitted in Article VI. The intimation,
it is quite enough, of the distinct decision of the Arbitrators on the
point before they can proceed to the next point in the question of regu-
lations; and as regards the question of regulations substantially on
both sides the matter is entirely, before the Tribunal. My learned
friends have said they have not read this Supplementary Keport. I
think they would have been wiser if they had, we begged them to read
it without prejudice to their objection, but they have not apparently,
and the result is that Mr. Phelps gives it an inaccurate description. He
says it embraces a number of new depositions. It does nothing of the
kind. It is a further argument on further consideration of the view
that the British Commissioners took upon the question of regulations,
nothing more.

Then, Sir, I have to read this answer of Mr. Blaine on this point.

The President. — Perhaps that would keep till to-morrow.

Sir Charles Kussell. — If you please, I should much prefer it.

The President. — Then, before we adjourn, I call the attention of
the Agents of both Governments to the unsatisfactory character, I am
sorry to say, of the shorthand report which has been given us. It has
been a source of great inconvenience.

Sir CnARLES Kussell, — May I state what has been arranged, and
I think it will be found to work well. We, on the whole, thought that,
as the com})ositors who have set up the type for that print were not
accustomed to the pjuglish language, or certainly not much accustomed
to lead it in manuscri])t, it was a very creditable production on the part
of the compositors of this great capital. There are, undoubtedly, a

74 ARGUMENTS ON PRELBflNARY MOTIONS.

iiuiiiber of inaccuracies, but it has been arranged, with the assistance
of your secretaries and the secretaries of the members of the Tribunal
that there shall be a corrected print at the end of each week, that is to
say, that the prints for the week shall all be corrected, and there shall
be a reprint of the corrected copy.

The President.— Then these are to be considered as proofs?

Sir Charles Russell.— These are to be considered as proofs for
temi)orary use.

Tlie President. — That is a very good arrangement.

Adjourned till to-morrow at 11.30.

FIFTH DAY, APRIL 6^«, 1893,

Sir Charles Russell. — Sir, when the Tribunal adjourned yester-
day evening I was calling attention to the letter of Mr. Blaine of tbe
8th November 1892 addressed to his successor in office as Secretary of
State, namely, Mr. Foster; and Mr. Blaine says that not one word was
said or intimated respecting the questions now raised by the British Gov-
ernment as to a secondary submission of evidence. Tlie first question
that one asks one's self in relation to that statement is why anything
should have been said. The parties have entered into an Agreement
or Treaty wliich speaks for itself, which was to be judged as to its effect
by the language which was used in it. But it is important to observe
that Mr. Blaine in that letter abstains, as you would ex])ect an honour-
able man to abstain, from suggesting that anything had taken place to
in any way convey to his mind that the British Government took any
different view at any time of the proper construction of the Treaty
than that which they had consistently observed in their original Case,
in the diplomatic correspondence, and in the mode in which they had
presented their case to this Tribunal, but I feel grateful to my learned
friend for calling attention to this corresponderice, because unless I
misconceive its effect, so far from impairing, it materially strengthens
the i)osition that I am now taking up. Because in this letter there
were enclosed two documents, and I would resi)ectfully, if 1 may, ask
all the Members of the Tribunal to take before them the Appendix to
the British Counter Case, Volume I, for they will not follow, as I should
desire them to, the point I am now insisting upon unless they have that
document before them. This is not ])rinted in the United States Case.
I hope the Tribunal will excuse my appealing to them and making
some insistance upon this point, but it is really in aid of the Tribunal.
I refer to the Appendix to the Counter Case of Her Majesty's Govern-
ment, Volume I, page 9. On that page are set out the two documents
which are thus headed. "Memorandum of Agreement referred to in
Mr. Blaine's letter of November the 8th, 1892". And it will be seen
by the Tribunal that that consists of two separate documents, both
dated, though separately signed, the 18th of December, 1891. Let me
remind the Tribunal before I read it of the point which is the great
point made by my learned friend Mr. Phelps in his argument on the
construction of Articles Vll and IX. — That the contingency referred
to in Article IX is the contingency of any Arbitration taking place at
all. We, on the other hand, say the contingency referred to in Article
IX is the contingency of the questions in Article VI being decided in
a particular fashion; in other words, being decided so as to render
necessary the concurrence of Great Britain to any Kegulations. Now,
bearing that point in mind, the contention, on my learned friend's
side, — what is the contingency referred to, — I say that these documents
demonstrate that the contingency was the contingency of the decision
of those questions in a particular manner.

75

76 ARGUMENTS ON PRELIMINARY MOTIONS.

Now, what is the first of them? "The followiug is the text of Arti-
cles for insertion in the Behring Sea Arbitration Agreement as settled
in tlie di])l()niatic correspondence between the Government of the
United States and the Government of Great Britain". Then follow
Questions 1, 2, 3, 4 and 5, as they appear in Article VI of the actual
Treaty which constitutes this Tribunal. Then we come to the 6th
clause of this Memorandum signed by Mr. Blaine, and Sir Julian
Pauncefote; and here it is. — "If the determination of the foregoing
questions as to the exclusive jurisdiction of the United States shall
leave the subject in such position that the concurrence of Great Britain
is necessary to the establishment of Regulations". — I omit the words
which for this point are immaterial and. which immediately follow, and
it goes on. — "The Arbitrators shall then determine" — need I dwell
upon those svords? — shall in that event determine; shall thereupon
determine, — "what concurrent regulations outside the jurisdictional
limits of the respective Governments are necessary and over what
waters such regulations should extend; and, to aid them in that deter-
mination, the Keport of a Joint Commission, to be appointed by the
respective Governments, shall be laid before them, with such other
evidence as either Government may submit." The rest of this is imma-
terial to the point which I am now discussing. Eecollect my learned
friend's contention is that this ambiguity, would not have arisen, if it
had not been that two distinct agreements were subsequently conjoined
and made into one, and, as my learned friend implied, perhaps not
incorrectly, clumsily put together. But I have demonstrated from one
of these documents alone, and without reference to the other at all,
that the contingency wiiich was in that one document contemplated,
was the event of the question of riglit (I use that expression for brevity)
being decided in one fashion; and then, in that event and in that event
alone, the determination, of the question of regulations came to the
front.

I of course may be taking a sanguine and a partisan view of this
case, but I do not desire to do so, and I confess my difficulty in under-
standing what answer can be made to that contention.

Now let us see what the next document is. You will observe that
the document which I have read and especially clause 6 of that docu-
ment which I have read, corresponds with Article VII of the actual
Treaty. Where do we find Article IX or the germs if I may so call
them of Article IX in the Treaty.

We find that in the next document; the following is the text of the
Behring Sea Joint Commission agreement as settled in the diplomatic
eorresi)ondence between the Government of the United States and the
Government of Great Britain; — "Each Government shall appoint two
Commissioners to investigate, conjointly with the Commissioners of the
other Government, all the facts having relation to seal life in Behring
Sea and the measures necessary for its proper protection and preseva-
tion. The four Commissioners shall so far as they might be able to
agree, make a joint report to each of the two Governments and they
shall also report either jointly or severally to each Government on any
points upon which they may be able to agree. "These reports" — that
is to say, whether "joint" or "jo'iit and several" "shall not be made
public until they shall be submitted to the Arbitrators, or it shall
appear tliat the contingency of their being used by the Arbitrators will
not arise."

Taking the two together is there any doubt what they mean. It
will be observed that Article IX is not textually in strict accordance

ARGUMENTS ON PRELIMINARY MOTIONS. 77

with tlie second of those documents, but it furnishes the substance,
although the hmguage is somewhat different, but not in any sense
which affects the point which I am submitting. Tlierefoie if I were to
stop here, and not refer to the answer wliich Sir Julian Pauncefote
makes, I have made good, I submit, my point, tliat so far from this
letter of Mr. Blaine, with enclosures accompanying it, serving my
learned friend's point, it is an aid to the argument which 1 am present-
ing. But what is Sir Julian Pauncefote's answer; and here I have to
make one observation. The Agent of the United States has thought
tit to print the letter of Mr Blaine, but has not thought tit to print — I
am very reluctant to make matters of complaint, and I do not do more
than observe in passing that he has not thought proper to print — what
I think ought to have been jDrinted, namely Sir Julian Pauncefote's
answer.

Mr. Foster. — May I say it would have been printed if it had been
written and received in time to be printed.

Sir Charles Russell. — I am very glad to have that explanation.

Mr. Foster. — It bears date two months after the letter to which it
replies.

Sir Charles Eussell. — That is not quite the matter in point, but
I am very glad to have that explanation, I understand the Agent to
say it was not received in time to admit of its being printed. That is
an ample explanation, and as obviously Mr. Blaine appeals to Sir Julian
Pauncefote, it would have been, of course, a matter of propriety that
the answer to that appeal should appear. However, the answer that
the Agent gives is entirely satisfactory.

Now what does Sir Julian Pauncefote say? To begin with, he begins
by showing why there was not an earlier answer for the reason that he
appears to have been absent from Washington, and his statement sliows
that, because he says "Since my return to Washington I have had an
opportunity of examining the official correspondence which has taken
place". Then "1 find", he says in the 2nd paragraph, "that in a note
from Mr. Foster to Mr. Herbert of the 9th of November last 1 am infer-
entially appealed to by Mr. Foster and also by Mr. Blaine in support ot
the contention of the United States Government that the contingency
mentioned in Article VII" — that ought to be Article IX by the way —
"does not refer to the decision of the Arbitrators on the five special
questions submitted to them, but to the inability of the Joint Commission
to come to an agreement as to the Seal Regulations.

"I am at a loss to understand this reference to me, as throughout the
whole of my negotiations with Mr. Blaine, and (during his prolonged
illness) with the Assistant Secretaries of State (Messrs. Wharton, Adee
and Moore) not one word was ever spoken or written which could even
suggest the belief that I ever held any view as to the intention of tiie
two Governments on the point in question, other than that which is
plainly expressed in Articles VII and IX of the Treaty". With respect
to those articles Mr. Foster states that the contingency referred to was
that of an inability of the members of the Joint Commission to come to
an agreement satisfa(;tory to their Governments, and not as Lord Rose-
bery supposes that of a determination upon the five s[)ecial questions
adverse to the contention of the United States. Mr. Foster adds. "It
is believed that Sir Julian Pauncefote, the negotiator on the ])art of Her
Majesty's Government, will nut dissent from this statement." Here is
the answer. Sir Julian Pauncefote says : — "I desire to vecord my entire
dissent from that view".

78 ARGUMENTS ON PRELIMINARY MOTIONS.

It follows as a necessary consequence that if the Arbitrators should
deteniiiiie that the concurrence of Great Britain is not necessary to the
establishnieut of regulations for the protection of seal life, the seal fish-
ery would theuceforth be exclusively regulated by the municipal law of
the United States, and no "concurrent" regulations would be neces-
sary. Therefore Article VII provides that if it shall be decided that
the concurrence of Great Britain in any such regulations is necessary,
the Arbitrators shall then determine what those regulations shall be.
Article IX provides that the Joint and several Keports of the Commis-
sioners may be submitted to the Arbitrators "should the contingency
therefor arise"; and further that the Commissioners shall make a Joint
Keport "so far as they may be able to agree", and that their lieports,
joint and several shall not be made public until they shall be submitted
to the Arbitrators, "or it shall appear that the contingency of their
being used by the Arbitrators cannot arise". And then in order that
I may spare the Tribunal the full reading of this document, because he
proceeds to justify that view, I would ask the Tribunal to allow me to
go down to about the middle of the page beginning' "The contingency".
"The contingency of such evidence being used could not arise till after
the decision of the Arbitrators on the five special questions. It was
quite unnecessary, therefore, to discuss during the negotiations, and by
way of anticii)ation, the mode in which that evidence should be brought
before the Arbitrators. The contingency of that evidence being used
before the Arbitrators might never arise, and, if it did, the mode of its
])resentation would be a matter of procedure for the Tribunal to settle.
Indeed, any discussion on that point would have been premature, as
anticipating a decision adverse to the United States on the five special
questions". And tlien he concludes by further references which I will
not trouble the Tribunal with.

Now I pass from that corresi^ondence and giving equal credit to Mr.
Blaine for the very negative view that he expresses — the very negative
view — and claiming eqnal credit for the bona fides of the dissent which
Sir Julian Pauncefote has expressed, I recur to what I ventured to sub-
mit to this Tribunal yesterday, namely that, although it may be right
to refer, where the question is a question left in doubt upon the con-
struction of the Treaty — in any serious doubt — to negotiations which
led up to it, and though that is certainly very frequently a matter or a
mode of construction, or an aid to construction, 1 should prefer to say
often and properly resorted to if the question arises on the construction
of the Treaty of Arbitration as to the question of jurisdiction, as to the
subject to be dealt with, as to the limits of the powers, and so forth, yet
I admit, when you have a Treaty which as I submit on the face of it is
intelligible and admits of no real serious doubt of construction, the
application of any reference to antecedent diplomatic correspondence is
at least a doubtful proceeding. You must construe the document upon
intelligible rules with reference to what the document itself has said.
1 pass from that and I have to make a reference to another point even
more remote which my learned friend Mr. Phelps, thought proper to
make, or thought himself Justified in making, still upon the point of
the contingency referred to and in order to justify his view that the con-
tingency referred to was the contingency of no Arbitration at all being
held, and it will be in the recollection of the Tribunal that on page 52
of the ])rinted note of the day before yesterday's proceedings, my
learned friend ]\!r. l*hel])s, referred to Sir Julian Pauncefote's letter to
Mr. Blaine on the 29th April, 1890, which conteniplate<l a scheme of
Regulations, and a scheme of Kegulations only. My learned friend said

ARGUMENTS ON PRELIMINARY MOTIONS. 79

tliat tliat clearly conteinplated tliat if the (Jommissiouers who were to
be appointed to frame that scheme of Kegulatioiis agreed in fraiuiug
that scheme of Eegulatioiis, tliat that was to be binding. 1 perfectly
agree; but does my learned friend suggest (1 did not understand him
to suggest) that that was the only matter that was in the view of the
Government at that time? IsTot at all. There was in the view of both
Governments at that time strongly, and always insisted upon by the
Government of Great Britain, that the questions of right must be setiiedj
that the question of damages to be paid by the United States if they
were wrong.

Senator Morgan. — Do you mean property right f

Sir Charles Kussell. — I do not say property right merely^ hut ques-
tions of right, — I say, Sir, questions of right. 1 do not limit it to one
question or another. I say questions of right should be settled, and at
that very time as my learned friend must know because I presume he
is familiar with the negotiations that had been going on and that were
continued after the Government of Great Britain were insisting- upon
their claim for compensation in respect of what they contended was the
wrong committed upon the ships of their subjects by their, as th(^y con-
tended, wrongful seizure in Behring Sea. Throughout it cannot be
doubted that this has been the position taken up by the Government of
the Queen, a ])ositi()n from which I am not departing now and from
which the Government has never departed. They deny to-day, they have
ahvays denied, each and every part of the rights claimed as rights by the
United States exclusive of others. They have always demanded com-
pensation in respect of the seizures which they contend were illegal;
but the question of right settled, they have always professed, and they prof ess
today, their readiness to consider any fair question of Regulations, always
bearing in mind that that question of Eegulatio7is is to be approached upon
the assumption that outside its territory, that outside the additional limita-
tions of water boundary conceded by International Law, the United States
have different rights from the riglits of the rest of the World frequenting
those waters.

Senator Morgan. — Approached by whom? — That that question must
be approached, in the way you indicated, by whom"? By the Tribunal
or by the United States'?

Sir Charles Russell. — What I have been stating, if you have done
me the honour to follow me. Sir, is what the position of Her Majesty's
Government on this question was.

Senator Morgan. — I understand that.

Sir Charles Kussell. — That tliat question of Eegulations is to be
approached on the basis of no rights on the part of the United States
except such as belong- to her by reason of her territory rights, as we
contend, well and accurately defined by International Law; and her
position, therefore, has always been that it is impossible to a[)proach
this question of Kegulatioiis till you have« j?norideteiiiiined the ques-
tion, whether there is or is not any exclusive or si)ecial right on the part
of the United States. Once that question is got out of the way, then
the ground is clear for the establishment of llegulations Just, exi)edient,
comenient in the interest of all who are concerned in tlie question. I
was stating the position which I, re])]-eseiiting- the Governmeiit of the
(i)ueeii, take up; which position is consistent with the attitude that the
Government of the Queen has constantly maintained.

Senator Morgan. — / perfeefly comprehended that point; but I did not
understand if Counsel insisted that the question was to be approached by
the United States or by the Tribunal in the manner indicated.

80 ARGUMENTS ON PRELIMINARY MOTIONS.

Sir Charles Russell. — I contend respectfully, and I should not
have used langua<?e perhaps of so forcible a chaiacter to the Tiibmial
itself; but, of course, my argument involves the contention that tliat
istheonly mode in which the Tribunal can apiu'oach the question within
its powers under this Treaty. Tiic United Estates are, of course, equally
bound if my construction of the Treaty is a sound one.

Xow it must be obvious. I do not think my learned friends have
made any attempt to conceal it — that the object of this motion is not
contined, — the object, the motive of this motion — to the question
whether this pai'ticular Supplementary Report is or is not to be admit-
ted. — My learned friend Mr. Phelps's argument upon the question as I
need not remind you took a very wide range, he gave peculiar impor-
tance to the motion especially in the beginning of his Argument yes-
terday in which he made ita])parent that this motion did involve, if not
directly, indirectly a question of very grave importance, as he quite
correctly styled it and which must some time or other be determined
by this Tribunal.

For my own part I thought the motion advanced by my learned friend
was premature.

I think so still. I think the time for his motion would have been
when we are approaching the question of Regulations and that he
might have reserved until that time the point whether this was a mat-
ter which the Tribunal should or should not have dealt with and we
would have been quite willing to have withdrawn this Supplementary
Report altogether for thepresentfrom the Tribunal, and to have reserved
to a more legitimate occasion the question whether it was or was not
proi^erly to be received. But now as the Tribunal has expended so
much time in the patient consideration of its reception probably it bad
better be discussed to the end. I say that my learned friend gave this
very marked importance to it because he yesterday said this: "Two
theories have been propounded by the respective parties" (That is at
the bottom of page 55 of the Report) " upon the construction of this
Treaty, in respect to the method of procedure. As I have remarked, I
believe this has been the subject of some diplomatic proceedings to
which I shall ask the attention of the Tribunal, and the views of the
other side have been communicated to us in a letter which accompanied,
I believe, the notice that this Report would be oftered so that we are
advised, and have been before advised, of the j^osition that the Counsel
of Her Majesty's Government take upon the subject. Their theory is
this: That there are to be, in effect, two hearings," two Arbitrations,
two awards (I am stating what Mr. Phelps attributes to us) " tirst ujion
the five questions that are first propounded in the Treaty, next in the
event that those questions sliould be decided in favour of the British
Government, a further hearing upon the subject of Regulations, and
that on that hearing fresh evidence, other evidence not theretofore in
the case is to be admitted. That is their view. We deny altogether
that the Treaty contemplates any such thing as two hearings, or that
the case discloses any x>ropriety for such a method of ])rocc(iure, I do
not say necessity but any propriety". And tlien he proceeds to argue,
and this is really the real bone of contention between us, — that uiy
learned friend contended that all these questions, — " Right" and " Reg-
ulaticms" — should be dealt with together, mixed up I know not how,
that you shall determine " liight" in view of arguments about "Regu-
lations", and "Regulations" in view of arguments about "Right", and
to these subjects which are in themselves in tludr very nature distinct,
marked by a clear dividing Hue, and a dividing line which as I ven-

ARGUMENTS ON PRELIMINARY MOTIONS. 81

tnied yesterday to point out marks also a division in tbe character of
the functions that this Tribunal lias to perform, tliey are according to
the contention of my learned friend to be mixed together and not as we
contend to be kept distinct.

Well now it is said that we claim two hearings, two awards, two
Arbitrations, and all the rest of it. Well I will not say that this is
nonsense, because that would not be respectful, but my friend cannot
snppose that we mean anything of the kind. We mean that this Arbi-
tration, that this Tribunal, having heard the discussion of the questions
of right and the evidence, from whatever source it is to be derived
applicable to those questions of right, shall proceed to state their con-
clusion, — if that be their conclusion as to all those questions, — that
their determination of those five questions is such as in their opinion
to require the concurrence of Great Britain in Eegulations within the
meaning of Article VII, and, thereupon, my friends are to proceed to
justify their claim for Eegulations by such evidence as is relevant to
that topic, and we are to meet their case by such argument and by ref-
erence to such evidence as is relevant to the same topic. It does not
involve two awards; it does not involve two Arbitrations; it involves
the simple act of keeping distinct and separate things which are in their
nature distinct and separate. It involves no additional expenditure of
time, and, although I said yesterday, and I wish to retract nothing
that I said yesterday, that I thought this Tribunal would be reluctant
to close the door against any important fact that might even recently
have transpired which had an impoitant bearing upon what ought to
be the judgment of the Tribunal in the exercise of its discretion on the
question of Eegulations, I did not thereby mean to hold out to this
Tribunal, or to suggest to this Tribunal, that we had any or the least
idea of offering such volume of evidence as my words might seem to
have suggested. Our case substantially is, as to Eegulations and as to
everything else, before this Court, with the exce])tion of this Supple-
mentary Eeport. We think it is irregularly before this Tribunal; and
we have only yielded to the irregularity in order that there might be
no ground for suggesting that there was a grievance on the part of the
United States; and it was in deference to the suggestion of the United
States itself, and contrary to the view which the advisers of the Gov-
ernment took that Lord Eosebery yielded to the objection of the United
States, and furnished to the representatives of the United States, to be
treated as part of our Case, tlie British Commissioners' Eeport. This
Eeport which we propose to jjut in evidence is supplementary to that.
And two questions, of course, arise in relation to it; and to those two
questions I should like to address one word, and one word only. I mean
the point thrown out by the President yesterday as to the word " evi-
dence" appearing in Article VII.

But before I do that may I be allowed for one moment to recur again
to a point which I made yesterday. My learned friend Mr. Phelps
complained and made it a matter of grievance; and of course it is a
great thing to get hold of a grievance if you can. A grievance is almost
as good as a sound argument at times before some tribunals. My
learned friend wants to get hold of a grievance, and he says: We have
reason to complain also that even upon the question of property and
property rights, and protection in relation to property rights dealt with
under point 5 of article VI— why even on that point, says my learned
friend, even on that point the Government of the Queen really do not
tell us what their case Is at all. I^ow I think it is important that it
should be shown that there is really no foundation for this complaint.
B s, PT XI (>

82 ARGUMENTS ON PRELIMINARY MOTIONS.

I yesterday called attention to page 11 of the British Case (tlie bottom
of page 10 and the top of page 11), Avhere the snbject isbrietly adverted
to; bnt if tlie Tribunal will be good enough to turn to page 135, chapter
VIII, the Tribunal will hud that we have discussed this question of
property, so tar as it was possil)le for us to do it in the then condition
of things. For what was our position? Our position was and is, this:
the claim of property is unprecedented. This claim of property is novel.
It linds no warrant, as we contend, in law. You do not contend that
seals are animals /era; »«/?//•«?. You do not contend that. You admit
that they are not — at least I think so, I know you do not contend that
they are: but at least you do not deny that they are animals ferce
natura'. Whether that will be denied or not, I really do not know, but
we did not conceive that it could be denied, and thereupon I want to
ask the Tribunal whether we were called ui)on, whether we could with
propriety be expected to do more tlian to point out as we have done in
chapter YIII the general i^rinciples which apply to property, and how
property could be acquired in animals of that class, and to point out
that according to our conception of those principles they had no rele-
vance to the claim of the United States, and did not support their claim
of proi)erty in the fur seals. Was it to be expected tliat we were with
the necessarily imperfect information at our command at that time — to
a large extent imperfect — to know w^hat were the conditions of seal life,
the incidents of seal life as to the going and the coming, the length of
residence on the islands, their migratory return to the ocean — were we
to set up hypothetically the incidents relating to that seal life which
we might expect might be relied upon by the United States, in order
to meet them?

I say that would have been illogical and more. I think it would have
been entirely impro])er. We state our general principles. We say you
do not come within those principles as far as we know; and when they
do advance the grounds, as they do at the later stage, when we see their
Case, and when we know the grounds upon which they put them, then
we meet them as fully as we can meet them in the Counter Case pre-
sented. And now. Sir, I have got, I am glad to say, very close to the
end of the argument with which I have had at this great length to
trouble you.

But 1 desire to say something upon the point of what is the meaning
of evidence in Article VII: " shall be laid before them with such other
evidence as either (Government may submit". It will be observed by
the Tribunal that two questions arise in relation to this Supplementary
Eeport. One only can be dealt with by this motion, namely, whether
any evidence at all not in the Case and Counter Case can be submitted.
The second point wiiether, if any evidence can be admitted, as we sug-
gest it can and ought, whether tliis particular Supplementary Report is
evidence, is, of course another question, and that you cannot judge (it
is obvious) until you see what it is; and therefore the sole question that
can be dealt with here is, whether any evidence touching regulations (I
hope the Tribunal understands that) touching regulations: conversant
with nothing else but regulations: diiected and intended to be used for
no purpose except regulations: whether any evidence of that kind
can at all be submitted and can be and ought to be received. It there-
fore is clear that, for the purposes of the present motion, it is to be
assumed that the Supplementary Report is evidence within the meaning
of Article VII.

The question, therefore, is narrowed, so far as this motion is concerned,
to the question whether any evideiu'e can be admitted which relates to
regulations, and which is not to be found in the Case or Counter Case.

ARGUMENTS ON PRELIMINARY MOTIONS. 83

But altliougli tliat is so, I do wisli to say a word iipon what "evidonce"
does mean iu tliis Treaty. It will save discussion hereafter, and 1 am
happy to think that there are some parts of this discussion in which I
think I can reckon upon the support of my learned friends. I need not
point out that there are difterent meaning's which may be g^iven to the
word "evidence". There is no necessity for referring to any but two
for the purposes of this discussion, namely, evidence receivable accord-
ing to legal rule and determined in a judicial proceeding — that is one
kind of evidence; and the other kind is any material which will throw
light upon or enable the Tribunal to arrive at a conclusion upon ques-
tions of fact, although it may not be evidence which comes up to the
standard of technical evidence in a judicial proceeding.

Q'he distinction is made more manifest when I remind the Tribunal
of this, and there is no member of it that is not conscious of it, that
what is legal evidence varies in different countries; nay, it varies even
in parts of the Queen's Domini(ms; as for instance, with barely one
exception, viz; questions relating to questions of pedigree — in the Eng-
lish Courts of Justice, hearsay evidence, as it is called, is not admissible.
I, as a witness testifying in an English Court of Justice, would not be
able, in proof of a given fact, to say that A. B. had told me that the
fact was so. But that class of evidence is admissible upon other than
questions of pedigree, even according to the Scotch tribunals, and the
system of judicature which they administer. The Scotch system is, as
no doubt many of you, if not all, know, largely founded upon the
Roman law, and the Roman law, again, gave a very much wider inter-
pretation of what was to be regarded, even in the judicial and techni-
cal sense, as evidence. So, again, France. The rules of evidence are
much wider as to the reception of evidence than those which prevail
either in England or in the United States. As far as the United States
is concerned we stand upon common ground. Their system of judica-
ture is founded upon <mr system of judicature; their common law is our
common law; and I could indeed give no better illustration of the com-
munity of law, even upon matters of evidence, and could say nothing
more creditable and praiseworthy of the judicature of the United
States, and of the writings of its lawyers than to point out the fact that
in England one of our principal text books upon law of evidence,
known as "Taylor on Evidence", a book that my learned friends are,
no doubt, familiar with, is absolutely founded upon — in great part taken
from — a well known American woik, by a well known author iu the
United States. I mean Mr. Greeideaf upon evidence.

We could not theiefore have any better illustration that on this ques-
tion of the technical meaning of evidence both countries are in accord,
namely that an English text- writer on the question of evidence bases
his work ui)on tliat of a United States author treating on the same
subject. Then what does " evidence " mean in the language of a Treaty
to which two nations are parties who profess substantially the same
system of law. Well I think I may cut this part of my argument short,
and I am sure that it will be with a sense of relief that you. Sir, will
hear that. You can have no better means of knowing in what sense
the word " evidence " was used in this Treaty, than by showing the way
in which each of the parties have acted upon it. That being so, I turn
to their original Case witii its voluminous Appendices, and I make this
broad statement which I do not think will be denied, that with the
exception of some documents of a historical character, and public docu-
ments which would derive some sanction for their acceptance from their
public character, there is iu no part of the Case, or the Appendices of

84 ARGUMENTS ON PRELIMINARY MOTIONS.

the United States, any tiling- tliat wonld be strictly receivable in evi-
dence if tendered in a court of law jiresided over by a judge clothed
with no more than the ordinary authority of a judge of one of the High
courts. They are Rei)orts: the result of inquiries, in large part of cor-
respondence with persons who are answering certain questions upon
the incidents of seal life; what they think about this, and what they
think about that, conversations with third parties in which third par-
ties say what some fourth person has told them. Many comments, no
doubt, may be addressed to the value of portions of that evidence, but
you will not hear from me, Sir, you will not hear from any one on my
side, any objection to the reception of that. We may ask you to dis-
count this, or not to i)l;K*e im])licit reli;ince upon that, but we will ask
you to deal with it as both sides and all sides have dealt with it, as being"
a matter not bound to be brought w ithin the technical rules of evidence
as considered in ordinary judicial proceedings and established courts
of judicature, but as meiiniiig something much wider and something
much broader. Indeed, I might point out this as an illustration of what
I have said — the last illustration which I shall make, A number ot
so-called depositions, some of them taken in Canada, and some of them
taken elsewhere, are included in the Case, and Counter Case or the
Api)endices to the Case and ('ounter Case of the United States. Now
I need not say that even if the deposition, or oath which is involved in
the notion of a deixisition, were even legally taken, that would not
make it evidence at all. It is a i)rimary condition for the admission of
evidence in an ordinary court that a witness who deposes shall be sub-
mitted to cross-examination. That is necessarily involved in it. But
more than that. There is in Canada, as there is in England, — and, I do
not affirm it to be so, but I think, as there is also in the United States
of America — a statute directed against what is suyiposed to be the pro-
fanity involved in taking what are called extra-judicial oaths — in other
words, a statute which renders it improper and which forbids the tak-
ing of oaths excei^t in judicial proceedings and within certain accepted
limitations; in the case of the United States depositions taken in Can-
ada we find them taken and sworn to, absolutely against the law of that
country.

Well now, Sir, I really have said I think enough to show you that the
word "evidence" in this connection means not technical evidence
according to the rules of courts of judicature, bnt that this Tribunal
will look to all the information that is ])ut before them even if it is only
second, or third, hand, — using their own judgment, weighing the evi-
dence, discounting ic if need be, and giving it only the proper weight
which they think it really deserves.

And now. Sir, I think I have only one other matter to refer you to,
and that is the letter of Mr. Tapper in answer to the communication from
Mr. Foster, the United States Agent, returning the Sui)plementary
Eeport. You will recollect. Sir, that when the Supplementary Report
was furnished to the United States Agent, it was also intimated to him
that it was intended to forward it to the Tribunal. Mr. Foster then
wrote, — I am not making any complaint, — his letter of the 27th of
March, objecting to that being done ; and Mr. Tupper, the Agent for Her
Majesty, replied upon the 27th March, and I want to read to you that
reply. — "The undersigned Agent of Her Britannic Majesty appointed
to attend the Tribunal of Arbitration convened under the provisions of
the Treaty concluded at Washington February 29th, 1892, has the
honour to ackowledge the receipt," — and so on; 1 do not think I need
read the formal part, — " and in reply thereto desires to state that it is

ARGUMENTS ON PRELIMINARY MOTIONS. 85

the view of Her Majesty's Governmeut tliattlie mode of procedure con-
templated by the Treaty has not been accnrately followed. While all
the material bearing ou the whole subject matter in dispute, intended
to be used by either party was to be submitted to the other party, that
part of such material wliich bore only on the question of regulations,
and particularly the Eeport or Keports joint or several of the Commis-
sioners of the two countries, should have been, it is believed, kept dis-
tinct from that part which bore on the questions of right; and that the
latter," — that is to say, as to right, — "should alone in the first instance
have been submitted to the Arbitrators, the former, namely that part
relating to regulations, only when the contingency therefor arose, or in
other words when the determination of the questions of exclusive right
had been arrived at".

It was upon this principle that the original Case of Great Britain was
framed, and this course would have been followed but for the objections
raised by the United States as stated in Mr. Foster's letter to Mr. Her-
bert of September 27th, 1892. In deference to those representations
and in order to tacilitate the progress of the Arbitration, Her Majesty's
Government, while maintaining the justice of their contention, furnished
to the Government of the United States and to the Arbitrators, the
Separate Eeport of the British Commissioners and its Appendices,
reserving at the same time their rights, as stated in Lord Kosebery's
despatch to Mr. Herbert of October 13th, 1892. The Government of the
United States in presenting to the Arbitrators, with their original Case,
the se])arate Eeport of the United States Commissioners had, in the
opinion of Her JMajesty's Government, departed from the mode of pro-
cedure contemplated by the Treaty. It was in pursuance of the under-
standing contained in the correspondence above referred to, that Her
Majesty's Government furnished to the Agent of the United States, and
to the Arbitrators, the Supplementary Eeport of the British Commis-
sioners which was referred to on page IGG D. of the British Counter
Case. At the proper time Her Majesty's Government will submit to the
Arbitrators that they are entitled to use this Supplementary Eeport,
and they are quite willing. — I call special attention to this — "that
co[)ies should remain in the hands of the Eepresentatives of the United
States, without prejudice to any objection they may desire to raise.
The Government of Her Britannic Majesty believe that the Arbitrators
will desire to have at their disposal any trustworthy information which
may assist them upon the questions referred to them for decision."

We were willing that they should without prejudice take this Eeport.
If they had taken it and read it perhaps we might not have had this
motion at all, but my learned friend preferred to have it returned, as
Mr. Foster says, unread, and then to rely upon the statement derived,
I know not whence, that it contains fresh depositions. It contains no
depositions — no depositions whatever; and I do think that if even now
my learned friends had looked at it, they would have probably not felt
bound to raise the question so far as this document is concerned. But
I am fully aware, as I have already made apparent, that that is not the
real question that is here involved — that is not the motive of this
motion — the mere rejection of this Supplementary Eeport. It is the
determination of that question of procedure to wliich I have adverted
as giving, in Mr. Phelps's view, and I agree with him, importance to this
motion.

I do not desire to occupy your time. Sir, longer; but I must be per-
mitted in two sentences to "sum u]) the short result of my argument.
First, it is clear that the Eeport or Eeports of the Commissioners are

86 ARGUMENTS ON PRELIMINARY MOTIONS.

not in all events to go before the Arbitrators, because in Article YII
they are to be laid belbre them only in the event of their having to
consider Regulations: and they are to consider Eegulations, and to
have power to consider Regulations, only if the deteruunation of the
foregoing questions renders it necessary. They are not to have it laid
before them or to be used by them until the contingency in Article IX
occurs, and the real turning x)oint in this controversy depends upon,
and my learned friends felt it, what is that contingency mentioned in
Article IX? If the contingency is that which we say it is, then I think
there can be no doubt that our construction of the Treaty is the correct
one. We say that contingency is not the contingency of any Arbitra-
tion at all, because we say the Treaty does not say so. The Treaty
says that the contingency is the determination of the first five questions
in the particular way. We say, in the next place, it can not be the con-
tingency of any Arbitration at all, because tliat would involve the
assumption that if the Commissioners agreed as to the Report, that that
Report upon the matter of Regulations was to be binding upon and to
take the place of a decision of this Tribunal. But Article VII in clear
and em]>hatic terms shows that that is not true because it explicitly says
that it is to aid the Tribunal in the determination of the question. If
I am right in that, what is the position of things'? Then we reach a
point in the controversy at which alone, and for the first time, the Tri-
bunal are entitled to take into their consideration the question of the
Report as bearing upon Regulations — The first time at which they are
entitled to take into account anything bearing upon Regulations. We
have had the machinery for the first five questions dealt with in the
antecedent Articles — questions of right. They are got out of the way.

We come to questions no longer questions of right, — questions of
accommodation; questions of convenience; questions of expediency;
questions of justice; questions of equity; questions of general consid-
eration ; not of the right of A. or of B., but of the right of A. and B.
and others in this question, — a question which does not depend upon
legal right at all; and when you have got to that point then it is that
the Report is to be laid before you with such other evidence as either
Government may submit. Again, I warn this Tribunal against its being
supposed, when I urge with insistence this point, that I ani holding out
to this Tribunal any prospect of a reopening of tliis question and of a
branching out in to new enquiries and into large fields of evidence, Ko ;
as I have told you, so far as I know, so far as I believe, this Sup]>le-
mentary Report, so far as we know, is ended and is closed. If they
have anything to say when they see that supplemental Report, to answer
it, to explain it, to contradict it, we do not olyect to their having that
right. By all means let them read it; let them judge of it; let them
see if it is a matter ('a])able of answer or explanation, and act accord-
ingly; and when my learned friend, in solemn and impressive tones,
spenks of the grave injustice of having fresh matter put upon him
which he has no opportunity of answering; allow me, I entreat this
Tribunal, to ask them to understand this and see how little reason there
is to suggest any special hardship or to suggest any real injustice.

I have before me their Counter Case. I am making no complaint
about it or its contents. I may have to make comments hereafter; but
I find in the Counter Case at page 207, what "^ On the 18th of A uly 1802
instructions addressed to a Capt. Hooper of the Revenue Marine cutter
"Corwin", instructing him to proceed to the Pribilof Islands and to
make certain inquiries and to report the result of those inquiries; and
the result of his inquiries, accordingly, appears in four reports, the first

ARGUMENTS ON PRELIMINARY MOTIONS. 87

of wLidi is dated the 17th of August 1892, at page 208 and extending
fiom page 208 to page 213, containing a number of statements of more
or less relevance, of more or less importance — statements of fact as to
which we have not the slightest opi)ortunity of cross-examining Oapt.
Hooper, or meeting the facts that he alleges.

Throughout the whole of this Counter Case, on almost every page
of it, the illustrations that I have given will lit in with the rest — new
matter as to which we have had no opportunity of inquiry and no oppor-
tunity of examination.

I am not making this as a complaint. I am meeting the comi)]aint,
I am pointing out that in an arbitration, conducted as this is, whei'e
evidence is admittedly ])ut in as to which there can be no cross-exami-
nation, that there must be a certain proportion of that evidence as to
which the other side can have no opportunity of meeting in anyway. It
is so with their Counter Case. It is so as regards the Supplementary
Eei)ort, with this important difference — that the Supplementary Eeport,
if 1 am permit! ed to say so much in description of it (I do not know
whether I am) is a sui)plementarv report, not putting forward new
facts, but expressing on further information and further consideration,
the views of men who have had special opportunities of observing this
question of seal life, so far as it bears upon Regulations. That is the
character and purport of the Supplementary Report. It is not a new
report like Capt. Hooper's, of new facts. It is comment, argument in
the light of further inquiry and further investigation.

Now, Sir, I sit down, gratefully recognizing the patience with wliich
this Tribunal has heard me. And before I sit down I wish to empha-
size the point which alone gives grave importance to this question —
that we claim from this Tribunal a decision as to which there shall be
no doubt or hesitation; that the questions of right shall be determined
before the question of Regulations is approached; and we shall use
every effort which it is in our power legitimately to use to insure that
result.

Sir Richard Webster. — I cannot add anything to Sir Charles'
argument.

The President. — We thank you for the perfect lucidity with which
you have argued your point.

I would ask Mr. Phelps and Mr. Carter whether they have anything
to add in point of observation to the foregoing argument.

Mr. Carter. — Mr. President, before I begin what I have to say in
reply to the argument which has been addressed to you upon the other
side, there is perhaps one point upon which I ought to make an obser-
vation in order that my argument may be better understood and not
misapprehended.

The learned counsel when taking his seat in the course of his argu-
ment yesterday, made an observation pertaining to what I may perhaps
call the proprieties of forensic controversy in something like these
words :

I tliinlf , therefore, that I have so far made good my position. I ought not to say
that I think so, as it is not the habit of counsel, with us at least, to expi-ess personal
opinions; and I wish to guard myself, and desire to follow the course which is con-
sidered the proper course in these matters — to submit these matters, and let them be
tested by the strength of the arguments advanced in support of them without bring-
ing in — and 1 hope my learned friends will agree with me — personality of counsel
for or against.

88 ARGUMENTS ON PRELIMINARY MOTIONS.

If his observations had stopped there I should not have thoujjht it
worth while to say anything; but he continued, and perhaps this was
the purpose for which he introduced the observation :

I am quite sure that there are many propositions put forward in the argument
which I have had the ]deasure of reading, presented by the United States, which I
should be sorry, and I think my learned Mends themselves would he sorry to commit
themselves to as approving lawjers.

Of course I can say nothing as to the rule which learned counsel
may i^rescribe for themselves in addressing a judicial tribunal. The
intimation is that the opinions we express here and the arguments we
address to the Tribunal should not be regarded as our real opinions,
or as not necessarily so, but as simple suggestions which may be made,
and which are submitted to the Tribunal without any expression what-
ever as to whether counsel believe in them or not, for what they may be
worth. 1 cannot say that I think there would be any very high degree
of value in a rule of that sort; and I think I should be quite unable
to comply with it myself. I have a habit myself, whenever I feel
strongly upon any question and have decided convictions in respect to
it, to express myself accordingly. I have no other way of arguing it;
and I do not object to the Tribunal's believing, when I speak as if I
believed in the opinions expressed by me, that 1 really do believe them,
and this, too, notwithstanding any derogatory estimate which an opinion
of that sort might compel them to form concerning the soundness of
my views as a lawyer.

I say this in reference to our printed argument, so far as I have had
anything to do with it, and I say it in reference to anything that I have
expressed, or shall hereafter express, in oral argument. I might add
to this that I do not think the learned counsel himself very well follows
the rule which he has suggested. He has a habit sometimes of s]>eak-
ing as if he really believed what he said, and as if he expected others
to think he so believed. And I cannot help thinking that he has at
times expressed himself with such force and earnestness as to indicate
that he really did mean what he said and intended the Tribunal and
ourselves to believe so. It would be very difHcult for me to listen to
arguments of counsel except upon a rule of that sort.

I say this for the purpose of showitig, not that counsel are not at
liberty to submit to judicial Tribunals opinions or arguments as to
which they may have some possible doubt, with a view of allowing the
Tribunal to weigh them; but I say it for the purpose of intimating that
I have no objection to having the Court suppose that I really entertain
the opinions which I ai^pear to entertain and express myself as enter-
taining.

So much for that. Now let me come to the real subject of this debate.
It has taken a very wide range indeed. I do not complain of the extent
of that range. A great many things have been said in it perhaps not
rigidly vital to the questions arising upon the particular motion which
has been submitted to the Tribunal; but still they have a bearing upon
it, and they are also things which at some time or other, in the course
of the discussions which will take place before the Tribunal, would be
likely to be said, nay, which would have to be said; and we may say in
regard to them, or some of them, at least, that they may as well be said
at the start, and the necessity of repeating them hereafter may thereby
be dispensed with, x)ossib]y.

But what is the nature of the proceeding which is now before the
Tribunal? Wliat are we talking to? What was it that occasioned this
present discussion? We can at least ascertain the point where we

ARGUMENTS ON PRELIMINARY MOTIONS. 89

beg'aii, however wide the range of discussion may be. We can go back
and see wliat that point was, and what the Tribunal is moved to do.

The (juestiou arose in this way: We came here on the 23rd of March.
The Tribunal assembled. The case, so far as the allegations and evi-
dences of the parties were concerned, had been terminated long prior
to that time. The Cases had been submitted many months before.
The Counter Cases had been submitted a long time before. Those two
methods were the only ones, as we supposed, provided by the Treaty
by which anything in the nature of evidence, or any thing in the nature
of information, if you i)lease, aside from evidence, or of a lower grade
than evidence, could be laid before this Tribunal. We never imagined
that there was to be any further opportunity for the submission of
evidence on the part of Her Majesiy's Government. We thouglit,
indeed, that we had much reason to complain in relation to the privi-
leges which had already been assumed by Her Majesty's Government
in the matter of the introduction of evidence. We thought we had
nnich reason to c()mi)lain ; but in a certain sense that had passed. We
did not suppose there would be any further occasion for renewing our
complaints, or feeling that we were subjected to any disadvantage.

On the 23rd of March we took another step. We began the argument
of the questions which are submitted to this Tribunal, and the argu-
ment of all of them — the question of jurisdiction in Behrlng sea, the
question of the property interest of the United States in the seals and
in the industry established upon the Pribilof Islands, the question of
concurrent regulations — all the questions required by the Treaty to be
submitted to the Tribunal, and as to which evidence had been taken.
We began the argument in reference to them, by submitting our i)rinted
arguments in accordance with the provisions of the Treaty. We sup-
posed, indeed, or should have supposed, if we had any occasion to
consider it, that certainly, after a cause was ripe for argument, and
after argument had m point of fact been submitted, there would be no
attempt to introduce aiiy further evidence, or anything in the nature of
it. Such a thing never entered our minds; because, as we view it,
such a tiling is scarcely conceivable. We had made our argument, our
principal argument. The Treaty indeed provided that if the Tribunal
desired, or if the parties desired, further oral argument might be had
in support of the written argument. That was a provision of the
Treaty.

The President. — There is more than that in the provision. If you
will read Article V, you will see that if the Arbitrators desire further
elucidation with regard to any point, they may require a written or
printed statement of argument.

Mr. Carter, — That indeed, is true.

The President. — Or oral argument. There is a difference between
the ])rinted statement or argument and the mere oral argument.

Mr. Carter. — Yes sir; there w^as indeed a provision, limited to action
on the part of the Tribumil itself, that if it desired that some point
should be further elucidated, it should in some manner be done. But
that emergency had not as yet arisen. There had been no expression
of any such desire on the part of the Tribunal, no api)licati(>n for that
purpose to the Tribunal. Nothing of the sort took place. The cause,
so far as the counsel was concerned, must be regarded as a cause with
the proofs closed, and in a condition for argument; and not only in a
condition for argument, but with tlie princiiml argument having actually
been made. That was its condition.

90 ARGUMENTS ON PRELIMINARY MOTIONS,

While it ivS in that condition, we receive from the Agent of the British
Government a paper purporting to be a supplementary report of the
British Commissioners appointed under the terms of one of Articles of
the Treaty — with notice that it had been delivered to the members of
the Tribunal. To say that we were surprised would but faintly express
our emotions upon the receipt of a document of tliat sort. There was
but one coarse, in our view, to take in regard to it, and that was to
return it immediately to those who sent it and to return it, with the
statement that we objected to any paper being placed before the Tribunal
at a time and in a manner not allowed by the terms of the Treaty.

Where should we be if such a course were permitted? In the course
of an experience at the bar now not very short, 1 have had all that I
could, by any possibility, do to establish my side of a controversy
against the arguments of my adversaries. To oppose their arguments,
to overcome them, is all, certainly, that I could ever undertake to be
able to do. But if my adversaries, in addition to the ability to answer
mj^ arguments by their arguments, could answer them also by the intro-
duction of neic evidence, the case would indeed be one for which I had
no resources at all. That was what I felt about it, and what my asso-
ciates felt about it.

That such a thing could be done at all was inconceivable to us. The
iray in which it was done was a matter which added to the amazement.
The Tribunal was not asked whether it would receive a paper of that
sort. We were not asked whether we had any objection to the intro-
duction of a paper of that sort. It was assumed by the British Agent
that he had the right to put it before the Tribunal, whether we liked it
or did not like it.

Senator Morgan. — Before the separate Arbitrators, you mean ?

Mr. Carter. Before the separate Arbitrators. I confess I am unable
myself to distinguish between that act and another which I have never
seen practiced, that alter a controversy had been finally submitted to
a judicial tribunal, one side should submit to the judges further consid-
erations in the nature of argument. It was not done secretly. I do not
complain of that. Oh no. We were apprised of it, and most distinctly
apprised of it; but what was asserted on the part of our adversaries
was that they had the right to do it. Well, if they had the right to do
it then, they had the right to do it the day after and the day after that;
and their right consequently had no measure or limitation except their
own pleasure. That was the nature of the right which they assumed.

We immediately informed our adversaries by letter that we returned
the paper, that we protested against the submission of it by them to
the members of the Tribunal, and that we should make a motion to the
Tribunal that it be dismissed from attention and returned to the source
from which it was received. We received in answer to that a courteous
letter from our adversaries, apprising us of the ground of their action.
I will read that letter.

The President. — Perhaps Sir Charles will give Mr. Carter the letter
which he has just read to us.

Sir Charles Kussell. — Certainly.

Mr. Carter. — I read.

The uncJIersigned, Agent of Her Britannic Majesty, has the honor to acknowledge
receipt of the Honorable John W. Foster's communication of this ilay's date, and in
reply thereto desires to state that it is the view of Her Britannic Majesty's Govern-
ment that the mode of procedure contemplated by the Treaty has not been accurately
followed. While all the material bearing upon the whole subject-matter in disjjute
intended to be used by either party was to be submitted to the other party, that
part of such material which bore only on tbe question of Regulations, and particu-
larly the report or reports, joint or several, of the Commissioners of the two coun-

ARGUMENTS ON PRELIMINARY MOTIONS. 91

tries, should have been, it is believed, kept distinct from that part which bore on tlie
questions of riglit, and that the Litter should alone, in the first instance, have been
submitted to the Arbitrators; the former, namely, tliat part relating to Regulations,
only -when the contingency therefor arose; or, in other words, when the determina-
tion of the questions of exclusive right had been arrived at.

And that is a statement, if I iinderstaud it, that, according to the
coiiteiiii)hitiou of the Treaty, wliatever rehited to the subject of reiiii-
iatioiis was not to be submitted, either to the Tribunal or to theo])posite
l)arty, until a determination had been reached by the Tribunal u])on
■what is called by my friends upon the other side the questions of right;
that then it was to be laid before the Tribunal, for the first time.

How does that defend the submission of this paper? That contiu-
gency had not yet occurred. Tlie Tribunal has not as yet reached a
decision upon what are called the questions of right, or ui)on any of the
questions. It had not determined that the contingency had arrived
u[)oii which the question of Regulations should be considered; and
therefore, in accordance with the views of the counsel themselves, the
fjime had not as yet arrived when it was proper to submit to the Tribunal
any such paper as this, if it bore, as they said it did, ujjon the question
of Regulations.

They then proceeded:

It was upon this principle that the original Case of Great Britain was framed, and
this course would have been pursued and been followed, but for the objections raised
by the United States in Mr. Foster's letter to Mr. Herl)ert of Se])temlier L!7th 1892.
In deference to those representations, and in order to facilitate the ])rogre8s of the
arbitration. Her Majesty's Government, while maintaining the justice of their con-
tention, furnished to the Government of the United States and to the Arbitrators the
separate report of the British Commissioners and its appendices, reserving at the
same time their right, as stated in Lord Rosebery's dispatch to Mr. Herbert of Octo-
ber 13th 1892.

"Reserving their right," that is, their right to submit a further report,
or further evidence, at the time when the contingency, according to their
view of it, was reached; namely after the Tribunal had announced a
decision of a certain character upon the questions of exclusive juris-
diction. They said they reserved that right; but whatever right they
might or could have reserved, the contingency mentioned in that reser-
vation, namely, the decision by this Tribunal of a certain character, had
not arrived, and therefore the submission of the document at the pres-
ent time was not defended by that reference to the correspondence
between Lord Rosebery and the United States Government.

Further they say :

The Government of the United States, in presenting to the Arbitrators with their
original Case the separate re|)ort of the United States Commissioners had, in the
opinion of Her Majesty's Government, departed from the mode of procedure con-
templated by the Treaty. It was in pursuance of the understanding contained in
the correspondence above referred to that Her Majesty's Government furnished to
the Agent of the United States and to the Arbitrators the Suiiplementary Re))()rt of
the British Commissioners which was referred to on page 166 D of the British Counter
Case.

I do not suppose that there was any tnidemtanding effected by the
correspondence referred to; but that will be the subject for future
observation.

The letter proceeds:

At the proper time, Her Majesty's Government will siibmit to the Arbitrators that
tliey are entitled to use this Supi)lcnientary K'cport, and tliey are (|uile willing that
copies should remain in the hands of the rcpiescntatives of United States without
prtijudice to any objection they may desire to r.iise.

The Government of Her Britannic Majesty believe that the Arbitrators will desire
to have at their disposal any trustworthy information which may assist them upon
the questions referred to them for decision.

92 ARGUMENTS ON PRELIMINARY MOTIONS.

That is their statement. It will be observed that in this statement
they go back to the time of the original preparation of the Case, speak
of what tliey conceive to have been an erroneons construction of the
Treaty by the United States in the preparation of its Case, and speak
of their having conformed, in a manner, to that erroneous constiuction,
and to a certain extent, as a defence of their present action in submit-
ting this paper at the present time to the Tribunal in the manner in
which it was submitted.

It was in this way that the question of the respective views of the
parties as to how the Cases and Counter Cases should be made up,
and what they should contain was brought into discussion before this
Tribumil, and it is this reference to tlie former action of the parties
which has enlarged the scope of the debate whi(;h might otherwise
have been confined within somewhat narrower limits.

As that wide range has been given to it, and as the methods which
have been pursued by the parties under the Treaty have been referied
to in great detail and made the subject of discussion, I must take the
liberty in tliese concluding observations, designed as a reply to the
argument on the part of Her Majesty's Government, to go back to that
original time and very briefly recount the circumstances under which
the Cases and the Counter Cases were put in. Before I do that, how-
ever, I desire to make one or two observations suggested by the remarks
which liave been made by Sir Charles Russell in reference to evidence.

The Tribunal wliich was created by the Treaty could not well be ])ro-
vided with the ordinary instrumentalities which areem])]oyed by courts
of justice for the purpose of ascertaining the truth upon disputed ques-
tions of fact. There could be no calling of witnesses and oral exa-mi-
nations and cross examination of them; and, as that was not possible,
it was not, of course, possible to apply to the Case those rigid rules of
the law of evidence which are followed both in Great Britain and in
the United States in reference to the introduction of evidence. That,
of course, was plain; and it was equally i)laiTi, or at all events it was
contemplated, that there would be differences of view upon questions
of fact as well as upon questions of law, and that some means there-
fore should be provided by which the parties should be enabled to
establish their views upon such disputed questions of fact. All that
the negotiators of the Treaty could do under the circumstances was to
I)rovide the best mode in their power; and while they could not follow
the rules of law exactly, to follow them so far as they could, and at
least to observe those fundamental j^rinciples of equality between par-
ties in the facilities which might be allowed to them for the purpose of
conducting their respective contentions. The examination and cross-
examination of witnesses was impossible; but was it impossible that
each party should be permitted to answer the proofs and the allega-
tions which his adversary might rely u])on'? Certainly, not. That
result, although not susceptible of being accommodated in the exact
and perfect way in which it is provided for in municipal Tribunals was
still susceptible of being accomplished in a substantial manner and in
a way sufficient to assure the administration of justice.

The Tribunal which was to consider the questions was to be a Tribu-
nal composed of the most eminent jurists. It was properly to be pre-
sumed that they would be able to separate the material from the imma-
terial, to weigh the value which should be put upon this evidence and
that evidence, and that although they could not have the benefit in the
fullest and most complete extent of the ordinary rules which govern
the iutroductiou of evidence, still that they would be sufficiently aided

ARGUMENTS ON PRELIMINARY MOTIONS. 93

in that particular, if it were required tliat each party should submit
his Case, his proofs, aud his evidence to his adversary to the end that
the adversary might criticise them, deny them, contradict them, meet
them, modify them, or reply to them. That is an opportunity insep-
arable from the admiuistration of justice. No proceeding- deserves the
name of being a judicial one unless each of the parties has an oppor-
tunity to know beforehand wliat the allegations of his adversary are,
and what the proofs are upon which he designs to support those alle-
gations. That facilities should be afforded for that main aud essential
thing is of course absolutely necessary. That is a ])oint which no one —
I will not say no lawyer — but no intelligent man living under English
law, would think of ignoring or disregarding.

If we turn to the Treaty we find that provisions of that sort are
made. Article 111 provides:

The printed Case of each of the two parties accompanied by the documents, the
official correspondence and other evideuce on which each relies, shall be delivered
in duplicate to each of the Arbitrators, and to the Agent of the other party as soon
as may be after the appointment of tlie members of the Tribunal, but within a period
not exceeding four months from the date of the exchange of the ratihcations of the
Treaty.

I suppose there is no question as to the entire lucidity of that clause.
It requires no interpretation. "The printed Case of each ot the ]>ar-
ties" was to be furnished to the other; and if we had no i)recedcnts to
guide us in respect to proceedings for international arbitration, law-
yers — anybody — would easily understand what "printed Case" meant.
It would be the case upon which you rested your contention; your
allegations of fact; the evidences, the proofs by which you proposed to
support them ; and the conclusions of law which you drew from them.

Article IV j)rovides:

Within three months after the delivery on both sides of the printed Case, either
party may, in like manner, deliver iu duplicate to each of the said Arbitrators aud
to the Agent of the other party, a Counter Case aud additional documents, corre-
spondence aud evidence in reply to the Case, documents, correspondence aud evidence
so presented by the other party

The Counter Case is provided for there. A method is thus provided
by which each party might — not support his original Case — not that—
but by which he might reply to the Case of his adversary, contradict
his proofs, show them to be untrue, negative his allegations, contradict
his conclusions of law. That was the opi)ortunity which was afforded
by the Counter Case.

The function of each of those documents, the office which it is to till
in this Arbitration, is carefully prescribed in the Treaty; so carefully
and so clearly that no one could, by any possibility, misinterpret it.

I may be permitted to say something in relation to the mode followed
by the Government of the United States in the pre])aration of its Case;
and in order to do that, so that the learned Arbitrators may understand
it, I should allude very briefly to what the presumable nature of the
proofs was at the time when the parties were called upon to prepare
their original Cases. What were the questions'? I shall not stop to
read them from the Treaty, but shall describe them generally.

In the first place, there were certain questions as to a jurisdictional
power or autlioiity over Behring Sea asserted by the United States to
have been in some manner derived from Russia, what my learned friend
Sir Charles Russell, has well enough styled a derivative title or right.

In the next place, there was the question of the right of ])roperty in
the seal herds and in the industry established upon the Pribiloft" Islands

94 ARGUMENTS ON PRELIMINARY MOTIONS.

of main tain in g those herds, whicli was asserted by the United States —
questions of ])roperty. Both of these were correctly described by Sir
Charles as questions of rigid.

In the next place, there was the question what regulations might be
necessary for the purpose of protecting the seals from extermination ;
which question by the terms of the Treaty was not, in the order of
determination which the Arbitrators were to adopt, to be determined
until after they had made a determination of the questions relating to
exclusive jurisdiction; and not then, unless that determination was
such as would require the concurrence of Great Britain in regulations
for the pur]>ose of preserving the seals. There was that order pre-
scribed by the Treaty in resi)ect to the consideration of the questions
by the Arbitrators.

Now, as to the first of these three questions — that relating to the
jurisdictional power or authority supposed to have been derived from
Bussia, there was not, it was to be presumed, any dispute whatever in
the evidence. It all rested upon documents supposed to b« accessible
by both parties. I will not say that it was not possible that dispute
might arise npon some question of fact, but at least it was not very
probable; and in the course of dii)lomat/c discussions respecting that
question, I do not think any serious dis7)ute had ever arisen in refer-
ence to any fact. The discussion was mainly in respect to the nature
and interpretation of documents known to the world, and in the posses-
sion of both parties.

With respect, however, to the question of property in the seals the
case was quite different. There, dispute, conflict, and a great deal of
it, was to be apprehended. The question as to whether the United
States had a property in the seals or not depended of course upon the
nature and the habits of that animal, as all questions of property in
animals depend upon the nature and habits of the animals; and what
the nature and habits of those animals were, in many particulars^ it
was foreseen from the start might be the .'lubject of very serious dispute
upon which much conflict of testimony would be anticipated. Where
were we to go for information in reference to the nature and habits of
seals, and the modes by which they were pursued and captured and
applied to the purposes of mankind? There was a great variety of
sources of evidence. There were the persons in charge of the Priby-
loflf Islands, the agents of the United States engaged iu maintaining
that industry there, their statements founded upon personal knowledge,
their reports, and all of these might be resorted to In addition to
that, there were the Indians along the coast, who followed these seals
in their migrations, and who had made for a long series of years, to a
certain limited extent, the pursuit of those seals a part of their occu-
X^ation. Their knowledge could be appealed to.

In the next ])lac!e, there was a large body of mariners connected with
the vessels engaged in pelagic sealing, masters of the vessels, officers
of the vessels, seamen, hunters, all of them more or less familiar with
the modes in which pelagic sealing was conducted.

I need not say here that every one could see that the great body of
these witnesses belonged to a class whose statements would be very
likely to contlict with each other, sometimes because they are dishonest,
sometimes because theyare ignorant, sometimes because they are inex-
act ; but, from a hundred reasons, we know that they are apt to conflict
with each other.

This whole subject, therefore, was encumbered with the possibility,
nay, the probability, that a great many of the allegations made by the

AEGUMEISTS ON PRELIMINARY MOTIONS. 95

respective paiti(?s would be drawn iuto seiious dispute; and the con-
tentions of the several parties were to be supported by such evidence
as they could obtain.

The" President. — Perhaps we might stop here and resume a little
later.

Mr. Carter. — Certainly, Sir.

(The Tribunal thereupon adjourned for a short time.)

Mr. Carter. — Mr. President, at the time when the Tribunal rose for
its recess, I was makino- some observations concerning the conditions
which this case presented at the time when it became necessary for the
X)arties to prepare their Cases. I had said that there were three prin-
cipal questions involved; that u])on the first of them, that relating to
the jurisdiction of the Unite:d States asserted to have been ac(iuired
from Kussia, there was not likely to be any conflict upon the evidence;
that upon the next question, that of property, there was likely to be a
great deal of conllict; and I pointed out some of the grounds upon
which it seemed probable that contlict would arise, and the extent of it.
Tiien there was the third question, that of regulations. Of course, the
determination of the regulations would involve a consideration of the
subject matter to Avhich it was designed that the regulations should be
applied, and that was to the seal herd, and the taking of seals; and this
question of regulations, therefore, depended precisely, as the qnestion
of property depended, upon the nature and habits of the seals, and the
modes by which they could be taken, and were usually taken, for the
purpose of being applied to the uses of commerce and the world.

Those two questions, the question of pro])erty, and the question of
regulations, would de})end absolutely upon the same kind of evidence,
that is, evidence disclosing tlie nature and habitsof the animals, and the
modes in which they were taken. The questions themselves undoubt-
edly were entirely distinct. One was a question purely of property
right; the other was a question what regulations were necessary in the
absence of a property right, and where the seals could not be protected
by the exercise of any rightful power, without the concurrence of other
Governments;— what regulations with the concurrence of other Gov-
ernments were necessary to promote what was assumed to be a common
object, namely the preservation of the seals. The questions were
entirely difierent in their character, but, nevertheless, the evidence
upon which they depended was substantially the same.

Now, the Government of the United States came to prepare its Case,
and the question arose how it should prepare it. Upon the first ques-
tion it was plain enough that the evidence upon which it dej^ended con-
sisted of the documents relating to the history of the liussian dominion
over Alaska, and to the various Treaties and diplomatic communications,
and other documents which from time tr time had made their appear-
ance in connection with that subject. As to the next question, that of a
l)roperty in the seals, it was necessary, of course, to place the facts upon
which we designed to sui)port our contention before the Tribunal. —
But how place them? By witnesses? No, we could not call any
before the Tribunal.— What must we do? We must resort to the best
evidence which under the circumstances was obtainable. That is the
rule in all judicial Tribunals, where one species of evidence deemed the
best is not to be procured for any reason, you must resort to the next
best. The only thing, therefore, Avas to consider what was next the best.
There was a variety of sources of evidence, such as the opinions of
scientific gentlemen, facts well known in natural history, all derivable
from books, which might properly enough be appealed to, but the imme-

96 ARGUMENTS ON PRELIMINARY MOTIONS.

diate facts must be proved by tlie testimony of witnesses, and, as we
could not call them before the Tribunal, we must do tlie best we could,
and procure their depositions.

Well, how was this evidence to be presented. Upon looking to the
terms of the Treaty, we are attracted at once to the provisions of Arti-
cle 111 which I have already read and whicli relates to the])rintod Case.
"The printed Case of each of the two pa;'ties accompanied by the docu-
ments, the official correspondence and other evidence upon which each
relies shall be delivered in duplicate". Article IV provides for the
Counter Case and is to the effect : " The Counter Case shall be delivered
in duplicate, with the additional documents, correspondence, and evi-
dence in reply to the Case, documents and correspondence and evidence
so presented by the other party." Therefore it was plain enoui>h that,
at least, as to the question of rights derived from Eussia, and as to
the property questions, all the evidence should be presented in the
Case. A provision in the Treaty might suggest a jiossible doubt in
reference to the question of regulations. "If the determination of the
foregoing questions as to the exclusive jurisdiction of the United States
shall leave the subject in such position that the concurrence of Great
Britain is necessary to the establishment of regulations for the projjcr
protection and x^reservatiou of the fnr seal in, or habitually resorting
to the Behriiig Sea, the arbitrators shall then determine what concur-
rent regulations outside the jurisdictional limits of the respective Gov-
ernments are necessary, and over what waters such Ivcgulations should
extend, and to aid them in that determination, the Eeport of a Joint
Commission, to be appointed by the respective Governments, shall be
laid before them, with such other evidence as either Government may
submit."

This, as one can easily see, suggests the inquiry whether this Report,
together with the other evidence referred to bearing on the question of
regulations should not be withheld until tlie Tribunal had reached a
determination that the concurrence of Great Britain was necessary, and
that suggestion is further supported by what has been so much dwelt
u])on by my learned friends on the other side — the phraseology in parts
of the Article IX of the Treaty which is to the effect that "the Kei)orts
shall not be made public until they shall be submitted to the Arbitra-
tors, or it shall ai>pear that the contingency of their being used by the
Arbitrators cannot arise."' "We saw, thei efore, that there was a certain
contingency in which these Eeports and other evidence bearing on the
question of regulations might not be used by the Arbitrators. Was it
the true construction of the Treaty that the Arbitrators were first to
determine the question whether concurrent regulations was necessary
or not and that until they had made that determination it was not in
order for them to consider any evidence bearing u])on regulations, and
not in order that any evidence should be submitted to them'? Was
that so? Well, if that were the case, if it was not in order, if it was not
regular, to submit the evidence on the question of concurrent regula-
tions until the Arbitrators should make a determination of that char-
acter it would follow necessarily that there was to be a double Arbi-
tration, a double hearing, and a double decision. When we look at the
provisions of the Treaty on that point it is very plain that there was but
one way in which evidence was to be submitted, and that was by the
Ocfseand the Counter Case, and but one Case and one Counter Case were
provided for. In the next place it was i)erfectly plain by the express
language of the Treaty that there was to be one written argument, and
only one written argument to embrace all the questions; and in the next

ARGUMENTS ON PRELIMINARY MOTIONS. 97

place it was provided there was to be o»e decision and only one decision;
and therefore it seemed to ns quite inadmissible that the idea should be
entertained that there were to be two hearings involving two separate
submissions of evidence. I need not argue tliat notion further, for it is
now declared by my learned friend on the other side to be simply non-
sense. So that it was very apparent to ns, and we never had any doubt
about it. that all the evidence that we had bearing- upon the controversy,
and whether upon the question of jurisdiction, or property, or regula- .
tions — all the evidence which Ave designed to submit in support of our
contention — must be submitted in the Case^ for that was the only means
jiointed out by the Treaty, by which any evidence except evidence in
reply could get into the hands of the Arbitrators.

The Case of the United States was prepared faithfully in accordance
with that view. The whole mass of evidence by which they designed
to support their contention, whether bearing u])ou the question of juris-
diction, the question of property, or the (piestion of regulations, was
placed in the Case, and fairly and unreservedly aiul fully submitted to
the observation, the criticism, the answer, the denial, of the other side.
There was absolutely nothing withheld. We had gathered together a
multitude of depositions in reference to the nature and habits of the
seals, all establishing or tending to establish, as we sup[)Osed, that
their nature and habits were sucli as to make them the property of the
United Slates. We had gathered evidence tending to show that if the
Tribunal should come to consider the question of regulations, that no
regulations would be effective lor the purjiose of i^reserving the seals,
except absolute proliibition of pelagic sealing. We eximusted all our
means of information then available to us for tlie purpose of putting
before the Tribunal and putting into this Case, to the end that our
adversaries might consider it and answer it, every fact that we designed
to bring forward to sustain our contention in this controversy; and I
have not as yet heard it suggested ujion the other side that there has
been any withholding by us of the slightest circumstance from that
Case to which we have at an^' time resorted for the purpose of sui)])ort-
ing any of our contentions. Those Cases were, I think, in the month
of September, in the first week in September, exchanged. We deliv-
ered to the Agent of the British Government our Case, made up in the
manner in which I have described. We then received from them their
Case, and proceeded, of course, with interest to examine its contents.
What was our sur[>rise to find that in that Case of the British Govern-
ment not one item of proof in relation to the nature and habits of the
seal, or the mode by which they were pursued, not an item of evidence
bearing on the question of property, not an item of evidence bearing on
the question of regulations. What could be the intention of this? Is
it possible, we asked ourselves, that Her Majesty's advisers have been
of the opinion that they could safely submit the interests of Her Maj-
esty's Government to this Tribunal without any evidence at all upon
these subjects; or are they in some manner aware of our opinions
respecting the nature and habits of the seal, and believe that those
opinions are correct so that they cannot in any manner assail them?
What is the view which Her Majesty's Government entertain upon
these points'?- We were wholly at a loss. The thought did occur to us,
only to be dismissed, at first at least, but still the thought did occur to
us, "is it possible that the advisers of Her Majesty's Government have
deliberately conceived that they could withhold all evidence upon which
they designed to rely ui^on these questions until they have received our
(Jase and know what our position and our evidence is, and then for the
B S, PT XI 7

98 ARGUMENTS ON PRELIMINARY MOTIONS.

first time, produce tlieir evidence under the pretext that it is a reply to
ours, so that we shall have no opportunity to meet if? Can that be possi-
ble"? Why, no; we could not think that. Both sides were represented
by lawyers, and by lawyers who were bred in the same school of jurisdic-
tion and procedure; and both sides equally knew that in that scliool of
jurisdiction and jirocedure nothing was more zealously regarded, noth-
ing more zealously protected than ])erfect equality between the con-
tending parties in respect to the use of the instrumentalities which a
court of justice employs in order to gain a knowledge of the truth — a
perfect equality.

Well, it was a very serious question for the advisers of the United
States to determine what should be done under the circumstances.
Should they go on without objection or protest, and then perchance,
when the Counter Case came in, find there was an immense mass of evi-
dence to which they would have no opportunity to reply, and go before
this Tribunal under those disadvantages? Why, if there had been no
material importance in the dispute a disadvantage of that sort was so
shocking to the professional sense, I may say, that we could not stand
under it. Wlnxt should we do? Itevoke the Arbitration? My learned
associate perhaps intimated in tlie conrse of his argument, that if his
counsels had been followed, that would have been done. It is no con-
sequence what our counsels were in that particular; but to revoke the
Arbitration, becaUvSe the Case had not been made out according to our
view, would be a step in which we could ill defend ourselves before the
civilized world, and, n^jon a cpiestion respecting an Ijiteruational Arbi-
tration, the opinions of the civilized world had to be taken into account.
We resorted to arbitration because perha^js the civilized world might
think that we were not justified in resorting to the dread arbitrament
of force in order to defend our claims to the seals. Could we go back
and resort to that dread arbitrament of force, because we disagreed
about the meaning of the terms in which written papers had been
framed? However easy it may have been to satisfy technic:U lawyers
that our oiiinion was correct, it would have been somewhat difficult to
satisfy the opinions of mankind that it was right to revoke the arbitra-
tion on that account. That course was out of the question. What else
could we do? Well, we could remonstrate with Tier Majesty's Govern-
ment and humbly request of it that it would furnish us with such
evidence as it designed to rely on tor the purpose of sustaining its con-
tentions; in other words, we could resort to entreaty, involving self
humiliation; and we might further insist that we would go on accord-
ing to our own views, and if, when the Counter Case of Creat Britain
came in it was found to contain matter which ought, according to our
views, to have gone into its original Case, we could then, when we came
before the Tribunal, assume that it had a jurisdiction to determine the
regularity and i^ropriety in which the Cases had been made up, and ask
it to strike out from the Counter Case of Her Majesty's Government
everything which in fairness ought to have gone into its original Case.
That we could do.

Well, for the purpose of saving the Arbitration the United States
resolved upon a course of that character — a conciliatory method, and, if
it Avas not agreeable to all of us, I am bound to say that, so far as I am
concerned, 1 think it was a proper one — and they therefore, addressed
a diplomatic comunmication to the British Government calling its atten-
tion to the true interin-etation of this Treaty, to the circumstance that
the Case of Her Majesty's Government had been made up in violation
of its plain terms, and to ask that the mistake should now be remedied

ARGUMENTS ON PRELIMINARY MOTIONS. 99

SO far as possible. It could not be remedied filtojietber. The counsel
for Great Britaiu were already iu possession of our Case and that knowl-
edge could not be recalled. Just look at it for a moment if you please.
I ought to call the attention of the learned Arbitrators to the special
advantages which Great Britain thus gained. In the first place they
knew what our grounds were before committing themselves. We had
comniittod ourselves fully and completely, not only iu respect to allega-
tion, but in respect to evidence. They had not committed themselves
at all. In the next place they had gained the advantage of selecting
their witnesses. There was a great number of witnesses who had, iu
one form or another, officially or otherwise, spoken in relation to the
nature and habits of seals and to the course of procedure upon the
Pribylof Islands. Official Reports in some instances contained some-
thing which might be understood to be for the benefit of Great Britain,
and something for the benefit of the United States. There was a great
deal of a documentary character out of which one party might pick
something which it supposed to be to its advantage and the other x)arty
might also select something which would be to its advantage.

Well now, if a party was obliged to decide in the first instance whether
he would make such a person his witness or not, he would be obliged to
say to himself, " I must use this man as my witness, because I do not
know that my adversary will use him as his, and therefore I must
decide now, and make him my witness now." What advantage did the
counsel for Great Britain gain in that particular. Why, they were able
to look into the Case of the United States, and see the various reports
which had been made parts of the evidence in that Case, and if there
were anything tending to favour the interests of Great Britain, they
could get the benefit of it without making the persons who made the
reports their witnesses — could treat their own witnesses as being the
witnesses of the other party, and gain all the advantages derivable from
that treatment — very decisive sometimes, as the learned Arbitrators
will easily understand, in judicial controversies. That advantage they
gained.

Another advantage they gained. There were quite a number of points
which would presumably be the subjects of dispute, as to which the depo-
sitions of witnesses, pelagic sealers, inhabitants of the coasts of the Beh-
ring sea and its vicinity would be called. How many witnesses was it
necessary to call to establish any particular position? The United
States in framing their Case were obliged to determine that question
with no lights other than conjecture, and say. "We will call so many
witnesses, and we will not go any further. We think that is sufficient
to establish the fact, unless it is overcome by tbe number of witnesses
adduced u])on the other side. That is a matter as to which we cannot
determine beforehand. We can only form a conjecture in reference to
it." The United States made up its Case under those disadvantages.
But the counsel for Great Britain waited until they came to prepare
their Counter Case and could then say, " to this lumit the United States
has introduced so many witnesses: we will introduce a dozen more.
As to this other point the United States has introduced so many wit-
nesses: we will introduce a dozen more;" and so on through all the
disputed questions. That is another very important advantage which
they gained.

But finally and decisively they gained this overwhelming advantage,
that they w^ere able to meet the testimony of the United States in all
the ways in which adverse testimony may be met — by contradiction, by
qualification, by overcoming it by the production of other and adverse

100 ARGUMENTS ON PRELIMINARY MOTIONS.

testimony, and the Uuited States could not do it at all. They could,
impeach our witnesses. They could show that this witness was not to
be believed under oath; and that that one could not be believed under
oath. They conld show by circumstances, which they might prove by
depositions, that a ceitain class of witnesses were subject to certain
objections not percei)tible ui)on the face of the testimony — in a word,
in all the forms in wliich the testimony of an adverse party may be met
and overcome. Great Britain secured the opportunity to do it, and
deprived us of it. I am speaking now upon the assumption that when
she came to frame her Counter (3ase she should incorporate into it a
large mass of evidence relating to the habits of seals and other testi-
mony as to the seals. If she did not choose to do it, no matter; all right.
But the ahiiifi/ to do it was the advantage Avhich the Agent of Great
Britain had gained.

And he gained it so that it could not be taken away from him.

Whatever miglit be done in the way of obtaining from Great Britain
evidence she had withheld, nothing could repair the disadvantage to
which we had already subjected ourselves; nothing could take away
from her the advantage which she had gained. She had it securely in
lier possession by the course which she pursued.

Now u ruler those circumstances the course we determined upon was
the conciliatory one; to ask them at once for the evidence upon which
they designed to maintain their contentions, so that we might have it
before the pre])aration of our Counter Case, and, if they chose to offer
it to us, to accei)t it as a compliance with the conditions of the Treaty,
although it came too late, and although it came under the enormous
disadvantages to us, and advantages to them, from the circumstances
upon which I have dwelt. Consequently, on the 27th September 1892,
Mr. Foster thus addressed Mr. Herbert, who was then in charge of the
British Embassy in Washington: " Department of State Washington,
September 27th"l892. Sir, on the Gth instant, the day after the receipt
by me of the printed Case of Her Majesty's Government, called for by
the provisions of the Arbitration Treaty of 1892; in a Conference
which I had the honor to hold with you at the Department of State, I
made known to you the ])ainful impression which had been created
upon me by a hasty and cursory examination of that case, but I with-
held any formal representation on the subject until I could have an
opportunity to lay the matter before the rresident. His absence from
this Capital, and the attendant circumstances have made it necessary
for me to delay a comnumication to you till the present". The learned
Arbitrators will remember that at this time Mr. Foster, the Agent of
the American Governnient, had been made Secretary of State. " I am
now directed by the President to say that he has observed with surprise
and extreme regret that the British Case contains no evidence whatever
touching the principal facts in dispute, upon which the Tribunal of
Arbitration must in any event largely, and in one event entirely,
depend. No proof is presented upon the question submitted by the
Treaty concerning the right of property or pro]ierty interest asserted
by the United States in^the seals inhabiting the Pribilofif Islands in
Behring sea, or upon the question, also submitted to the Tribunal of
Arbitration, concerning the concurrent regulations which might be
necessary in a certain contingency specitied in the Treaty. If it were
fairly to 'be infeired from this om'issiou tiiat no ])roofs on these impor-
tant points are intended to be offered in behalf of Her Majesty's Govern-
ment, no ground for criticism or objection by the Government of the
United States could arise, since it is within the exclusive proviuce of

ARGUMENTS ON PRELIMINARY MOTIONS. 101

eitlier party to determine wliat evidence it will submit in respect to any
part of the controversy or to retrain from submitting any evidence at
all; but such inleience as to tlie course contemplated by tbe Britisli
Government does not seem consistent with certain statements made by
its Agent in the printed Case submitted by him",

isow then, at this point, I will interrupt the reading of the letter for
this purpose; I wish to call your attention to wdmt was said in the Case
in respect to these omissions. I now call the attention of the learned
Arbitrators to the Case of Her Majesty's Government and to what is
said in it at page 135. It begins' thus: — ''Poiut 5 of Article VI. —
Has the United States any Right, and, if so, what Eight of Protec-tiou
or Property in the Fur seals frequenting the islands of the United iStates
in Behring sea wheu such seals are found outside the ordinary 3-mile
limit? — Xiie claim involved in this question is not only new in the
present discussion, but is entirely witlioiit precedent. Jt is, moreover,
in contradiction of the position assumed by the United States in analo-
gons cases on more than one occasion. The claim appears to be, in this
instance, made only in respect of seals, bnt the principle involved in it
might be extended on similar grounds to other aninuils ferw naturcv,^
su(!h, for instance, as whales, walrns, salmon and marine animals of
many kinds." And it goes on to argue that Ihere is no foundation for
a claim of property, and treats it as a mere question of law. At the
close of this particular part of the Case of Great Britain it is said :
"In the absence of any indication as to the grounds upon which the
United States base so unprecedented a claim as that of a right to pro-
tection of, or property in, animals/era? naiurce upon the high seas, the
further consideration of this claim must of necessity be postponed; but
it is maintained that, according to the principles of International law,
no property can exist in animals ferm naiurce when frequenting the
high seas." Now then the position taken by Great Britain by the form
in which her Case was made up in this particular is based upon these
two grounds: first, that a seal is an animal. /'crce nafurw, and therefore
cannot be the subject of property at all, and that the question whether
he is a subject of property at all is a question of law and not a question
of fact, Next, if the United States should happen to show any grounds
or reasons upon which they claim that the seal is a subject of ijrop-
erty, she Great Britain will answer that claim when those grounds and
reasons are shown and will postpone the consideration of the case
until that time. That is to say, if the United States undertakes to
show by argument that seals are property, we will answer the argu-
ment when the case is made. If they undertake to show by evidence
that the seals are ])roperty, we will answer that evidence by evidence
of our own. That is the i)Osition which they took. Well, I have one
or two observations to make upon the face of that. In the first place,
we admit that the question whether seals are the subject of property
or not is a question of law. But it is a question of law which depends
upon facts, and how the question of law is to be decided, of course no
one can tell until it is known what the facts are.

In other words, the question whether there is a x^roperty in seals or
not depends upon the nature and habits of the seals, as is now fully
admitted upon the other side, but was at this time denied; and in order
to know what the nature and habits of seals are, of course, evidence
must be given to show what they are. Now the question of property
was submitted to the Tribunal. If we had any evidence as to their
nature and habits on which we contended that the property in them
was in the United States, it was our business to submit that evidence

102 ARGUMENTS ON PRELIMINARY MOTIONS.

in our ]>iii)('ii)al Case. We did so fully, completely, uuieservedly. If
Great Britain liad any evidence on which she claimed that seals were
not the subject of in()i)erty, or not the property of the United States,
it was lier duty to submit it in the same manner in her Case, fully,
unreservedly and completely.

She did not do it, nor did she submit an item of evidence upon that
point, but ])ostponed the consideration of it in the manner in which I
Lave stated. J^ow, therefore, haviui? called your Honors attention to
the excuse or apology, if excuse or apology it may justly be called, for
withholding from the Case evidence ujX)n that vital and important ques-
tion, I will proceed with the reading of Secretary Foster's letter: — "If
it were fairly to be inferred from this omission that no i^roofs on these
important points are intended to be otfered in behalf of Her JMajesty's
Government, no ground for criticism or objection by the Government
of the United States could arise, since it is within the exclusive ])ro\-
ince of either party to determine what evidence it will submit in
respect to any part of the controversy, or to refiain from submitting
any evidence at all; but sucli inference as to the course contemplated
by the British Government does not seem consistent with certain
statements made by its Agent in the piinted Case submitted by him".
And the Secretary then goes on to refer to the statements which I have
already read to the learned Arbitrators, and I will not repeat them: —
"It must be evident," the Secretary continues, — "to the Governmentof
Her Britaninc Majesty that, by the provisions of the Treaty, the ques-
tion whether the United States have any property interest in the seals
referred to and the question what concurrent regulations in the speci-
lied contingency may be necessary, are directly submitted to the Tri-
bunal; that the Treaty assumes that each party will or may have alle-
gations to make and evidence to ])roduceui)on botli questions; that the
plain contemplation of the Treaty is that each party shall state in his
Case what his propositions of law are and the evidence which will be
relied upon to bring the case under tlieni to the end that the otiier party
may have a fair opportunity of shewing in his Counter Case that such
evidence is untrue, or erroneous, or ]>artial, or subject to qiialilication
or explanation, for which purpose alone the provision for a Counter
Case was framed. The British Agent and Counsel must well know
that the decision of the two questions above referred to must depend
upon the evidence produced concerning the nature and habits of the
fur-seal and the methods of cai^turing and killing which are consistent
wnth the jireservation of the species; and that it is mainly upon these
points that collision and contradiction u^^on matters of tact and differ-
ences in res])ect to matters of opinion are exhibited by the statements
of persons likely to be made witnesses; that such witnesses are in
many instances under the influence of prejudice and bias and, in some,
open to the suspicion of insincerity and untruthfulness; and that the
only way by which either party may protect itself against the conse-
quences of falsehood or error is by having an opportunity to detect and
expose it.

"The President cannot conceal his astonishment that it should be
assumed that the British Government is at liberty to introduce a whole
body of testimony of this character for the hrst time in its Counter
Case and thus shut out the United States from an opi)ortunity of detect-
ing and exposing any errors which may be contained in it. The Gov-
ernment of the United States cannot fail to be aware from the corre-
spondence that has hitherto taken place on this subject between the two
Governments as well as from full information derived from the repre-

ARGUMENTS ON PRELIMINARY MOTIONS. 103

seiitatives and agents of Her Majesty's Government and the Canadian
Government in the course of the i)roceediii.<;\s and discnssions that have
already occurred, not only that it is claimed on the part of those Gov-
ernments that material evidence exists to contradict the facts asserted
by the Government of the United States, but that a considerable part
of it has been already taken and prepared by the British Government,
as to the character, extent and weight of which, however, the Govern-
ment of the United States is wholly uninformed. The propositions of
law and of fact upon which the United States will rely in the Arbitra-
tion are precisely stated in its Case now in the hands of Her Majesty's
Government, and need not be recapitulated here. In support of these
assertions of fact a large amount of evidence, and all the evidence the
Government of the United States will offer, exce])t in rebuttal of that
which may be introduced on the other side has been prepared and is
printed in the United States Case and its Appendices." This letter,
which is too long to read in full, and to which I commend your special
attention concludes with this request: "But the President entertains
the greatest confidence that when the views herein expressed are
brought to the attention of Her Majesty's Government, it will hasten
to correct the errors which have been made by its representatives in
charge of its Case, and he is pleased to give the assurance in advance
that the Governmc^nt of the United States will assent to any reasona-
ble means that may be proposed to that end by Her Majesty's Govern-
ment. It is to be noted, however, that if the date fixed in the Treaty
for the closing of the Counter Cases is to be observed, no time is to be
lost by the British Government in submitting such projiosition as may
seem to it to be called for under the circumstances. It would not be pos-
sible to correct the injustice which the Government of the United States
conceives has already been done by the manner in which the British
Case has been made up. It was an advantage which it is conceived
was not intended to be afforded to either party, that, in taking its evi-
dence in chief, it should have the benefit of tlie possession of all the
evidence on the other side as also that in making up the Keport of its
Commissioners it should first be provided with that of their colleagues
representing the other Government in respect of those points upon
which they have failed to agree. But this disadvantage the United
States Government prefers to submit to, though quite aware of its
importance, rather than that the arbitration should be put in peril.

" I have felt it necessary to enter at some length upon an exposition
of the views of my Government upon this question, because of its great
gravity and of the serious consequences which might result from a fail-
ure of the two Governments to agree respecting it, and because of the
earnest desire of my Government to reach a mutually satisfactory settle-
ment. I deem it proper, however, to add, in conclusion, that the Gov-
ernment of the United States has entire confidence in its ability to
maintain its position in the controversy submitted to the Tribuiml of
Arbitration; but to this end it must be afforded the benefit of those
substantial safeguards against the introduction of error which the judi-
cial systems of all nations so carefully secure and which were designed
to be secured by the provisions of the Treaty. In the absence of such
safeguards no party to a judicial proceeding can be confident of the
protection of his rights; indeed, atrial of a question of right, when one
party has no opportunity of meeting and answering the allegations
and evidence of the other, does not deserve the name of a judicial pro-
ceeding." I find in this passage which I have just read a matter which
my learned friend Sir Charles Kussell made the subject of observation

104 ARGUMENTS ON PRELIMINARY MOTIONS.

yesterday. It was the intimation by Mr. Secretary Foster that the
Commissioners appointed on the part of Great Britain had waited, or
might wait, and, having obtained the Keport of the Commissioners
appointed by the United States before they piepared their own, might
prepare tlieir own with the advantage of a previous knowledge of what
the report of the United States Commissioners contained. Well, Sir
Charles made the observation that he thonght, — he hoped and believed —
that Mr. Foster wonld be sorry that he had made that imputation, as he
called it; and he expressed the view that it was a most serious impu-
tation upon Her Majesty's Commissioners, — the notion that they would
undertake to wait until after the Commissioners of the United States
had presented their views, and then present their own with the
advantage of a knowledge of the views of the United States Commis-
sioners before them. In the opinion of my learned friend, such a line
of conduct as that would be in a high degree objectionable and incon-
sistent with honorable sentiment, and he therefore expressed the regret
that Mr. Foster had as he thought — although I do not think it is quite
apparent upon Mr. Foster's statement, made such an imputation as that.

I have to say that the imputation upon the character of the Commis-
sioners of Great Britain, if made by anybody, has been made by my
learned friend, and not by Mr. Foster. If it be an objectionable thing
on the part of the Commissioners of Great Britain to make up a report
ujion the subject committed to them, with a knowledge of what had
been reported by the Commissioners of the United States and at a time
when the Commissioners of the United States conld not answer it — if
that be an objectionable j)roceeding inconsistent with sentiments of
honour — the Commissioners of Great Britain, allow me to say, have
done it. This very Supi)lemeutary Keport is made up, is it not, with
full knowledge of what the Commissioners of the United States have
said and with all the advantages possessed by such full knowledge. It
may be said, indeed, that the United States Commissioners may now
if they clioose, reply to it. No, they cannot. The Government of the
United States has already declared in the most solemn manner that
according to its views of the interpretation of the Treaty the submission
of documents for evidence of any character to this Tribunal expired
long ago. They knew upon the other side that we could not answer it
according to our view of the Treaty. Therefore if there is any imputa-
tion upon the conduct of the Commissioners of Great Britain, it is an
imputation not made by us, but by the other side.

Xow this letter of Mr. Secretary Foster was a conciliatory one offer-
ing an opi)ortunity to Great Britain to repair as far as possible — it
could not be wholly repaired — the disadvantage done to the United
States by the mode in which the Case was prepared. It was responded
to by Lord Eosebery on the 13th October, 1892. He proceeds in that
answer to defend the manner in which the Case on the part of Great
Britain had been made up and to say that the omission of evidence in
relation to the nature and habit of seals was proper, that any introduc-
tion of evidence upon that point into the case would be improper, and
that the introduction of evidence upon those points in the United States
Case was also improi)er, as I understand him.

"The Government of Her Britannic Majesty" he says "can not admit
that there is any foundation for these complaints, which seem to be
based upon a construction of the Treaty which, in their belief and in
the opinion of their advisers, is erroneous. The scheme of that Treaty
provides that the Ave questions submitted in Article VI should be kept
distinct from, and that the decision thereon should be i)rior to, the con-

ARGUMENTS ON PRELIMINARY MOTIONS. 105

sideration of any question of concurrent regulations, which considera-
tion woukl only become necessary in the event of the tive points being
decided unfavourably to tlu; claim of the United States. The sixth
Article requires that a distinct decision shall be given on each of these
points, while the seventh Article provides that if the determination of
the foregoing questions as to the exclusive Jurisdiction of the United
States shall leave the subject in such position that the concurrence of
Great Britain is necessary to the establishment of regulations for the
proper protection and preservation of the fur-seal in, or habitually
resorting to, Behring Sea, the Arbitrators shall then deternnne what
concurrent regulations are necessary, and that 'to aid them in that
determination, the Keport of a Joint Commission, to be appointed by
the respective Governments, shall be laid before them, with such other
evidence as either Government may submit.' It will be noted that the
seventh Article of the Treaty refers only to the lieport of a Joint Com-
mission, and it is by the ninth Article alone provided that the joint and
several Reports and recommendations of the Commissioners may be sub-
mitted to the Arbitrators, ' should the contingency therefor arise.' The
event therefore on the happening of which the Keport or Reports and
further evidence are to be submitted is thus indicated by the Treaty; —
that event being the determination of the five points submitted in the
sixth Article unfavourably to the claim of the United States, and so that
the subject would be left in such a position that the concurrence of Great
Britain would be necessary for the i^urpose of establishing proper
regulations."

Xow there is his position. His position is, that the submission of
these reports, and the submission of any other evidence, bearing upon
the question of regulations is not to take place until the decision of the
Tribunal is made upon the first series of questions. So he declares
that the insertion of evidence by the United States bearing upon these
points was wholly improper. Well, what does it mean"? It means that
tlie time to submit evidence to the Tribunal upon the question of regu-
lations does not arrive until after a decision by the Arbitrators, and that
it arises then only in a certain contingency. What does that mean?
That means, does it not, that there are, possibly, two distinct decisions
to be made by the Tribunal. That is what it means. You must await
the decision of the Tribunal on the first five questions before you can
submit any evidence upon the question of regulations, and then if that
decision is in a certain way, then and then only, it is in order to submit
evidence upon the question of Regulations. That is the position taken.
In other words, it is distinctly and squarely taking the position that
there are to be two hearings, two submissions of evidence, two decisions,
all of which my learned friend now pronounces, and justly pronounces, —
I should not say it except I had his authority for it — to be nonsense,
Well, what does he say in conclusion? " The Government of Her Bri-
tannic Majesty therefore reserved, and in their opinion rightly reserved,
until the time contemplated by Articles VII and IX of the Treaty,
the consideration of the question of concurrent regulations, should
the contingency therefor arise, and Her Majesty's Government protest
against the introduction, at this stage, of facts touching seal life, which
they contend aflbrd no support to the exclusive rights claimed by the
United States, which were the original cause, and formed the first
object of this Arbitration.

" With regard to the allegation that the United States will have no
means of contradicting, limiting, or qualifying the proof and evidence
adduced in the British Counter Case, the Government of the United

106 AEGUMENTS ON PRELIMINARY MOTIONS.

States appear to have overlooked the ])rovision of Article VII, by
which, with reference to tlie question of the concurrent regulations,
express permission is given to each Government to submit other evi-
dence". That is to say, there is provided, according to this interpreta-
tion a subsequent time, after decision by the Arbitrators, in which each
Government may submit further evidence, and that subsequent time
(the inference is, or the language is, I think in some parts of this
paper) — that subsequent time is a matter of procedure to be regulated
by the Tribunal of Arbitration itself; and when it comes to decide the
first five questions in such a manner as to make the consideration of
regulations necessary, it will then determine the time, manner and
method in which the subsequent evidence is to be given, and, in such
determination will, of course, afford full protection to each party as
against the other.

" These are the views," he goes on to say, " of the Government of
Her Britannic Majesty, and they must maintain their correctness. But
the Government of the United States have expressed a difterent view.
They have taken the i)osition that any facts relative to the considera-
tion of concurrent regulations sliould have been included in the Case
on behalf of Her Britannic Majesty presented under Article III; and
that the absence of any statement of siich facts places the United
States at a disadvantage. The Government of Her Britannic Majesty,
while dissenting from this view, are desirous in every way to facilitate
the j)rogress of the Arbitration, and are, therefore, willing to furnish at
once to the Government of the United States and to the Arbitrators
the separate Eeport of the British Commissioners with its appendices.
The Government of the United States are at liberty, so far as they
think fit, to treat these documents as part of the Case of the Govern-
ment of her Britannic Majesty ".

Well, upon receiving that, it was thought on the part of the United
States that it possibly, probably, furnislied a way out of the ditficulty, —
a way not free from objection — no such way could have been found to get
out of this difficulty — but still a way which, under the circumstances,
ought to be accepted. If this Report of the British Commissioners
with its Appendi(;es thus promised, really contained the substance of
all that Great Britain designed to rely upon in respect to matters of
seal life, why the United States would have an opportunity of meeting
it and of overcoming it if they could, in the Counter Case, and they
therefore were disposed to accept the offer thus made of this Report
with its Appendices as a reparation, so far as possible, of what they
conceived to be the injustice which had been done to themselves.

Senator Morgan. — But if you will allow me to enquire, Mr. Carter;
did tliat Agreement between the Agents of the G overnment, or between
the two Governments, operate to enlarge the jurisdiction and powers of
this Tribunal after the Case of Great Britain had been submitted into
the hands of the Arbitrators?

Mr. Carter. — Well, that is a question, which, I do not say has not
occurred to us, but which we have never thought it worthwhile to fully
discuss, or come to any opinion about. I should hope for myself that
no question would be made about it by the Arbitrators. Under the
circumstances the United States Government in its capacity as a Gov-
ernment and through the ordinary measures of diplomatic intercourse
has consented to adopt this mode of repairing what it conceives to have
been an original error in the preparation of the Case. I believe it is
within the power of the Government of the United States to enter into
that agreement, and that it is binding ui)on this Tribunal of Arbitration.
That is my belief.

ARGUMENTS ON PRELIMINARY MOTIONS. 107

Senator Morgan.— Altlionoli it may alter tlie Treaty?

Mr. Carter. — I do not think it does alter the Treaty in substance.
It is in reference to the mode of procedure, and that is a subject as to
which some margin of liberty must be allowed to the respective Gov-
ernments, and, in the opinion which we have entertained, it is effective
for the end. 1 hope it will be allowed to prove effective, and that no
question will be made to the contrary. Of course, I cannot determine
for any member of this Tribunal his views in lelation to his duties.

jSTow, this Keport with its appendices was, either at the time of the
sending of this letter, oi^ very soon after, submitted to the Agent of the
United Stat<^s.

Sir liiciiARD Werster. — With the letter.

Mr. Garter. — With the letter.

General Foster. — It accompanied tlie letter.

Mr. Garter. — It accompanied the letter; and Mr. Herbert, Avho had
charge of the diplomatic interests of Great Ihitain in Washington at
that time makes a report which is printed in the Appendix to the
British Gase, which concerns his doings in the nmtter. On the 9th of
November, 1892, he addresses this letter to the Earl of Kosebery: —
"My Lord, With reference to my telegrams of today, I called at the
Department of State this morning at the request of Mr. Foster when
he handed me a note containing the reply of the United States Gov-
ernment to your Lordships despatch of the 13th ultimo in regard to
the Behring Sea Arbitration. After brietly recapitulating the i)riuci-
pal points of this communication, coi)y of which I have the honour to
inclose herewith, he stated that I might consider the difiiculty which
had arisen between the two Governments as settled, but he wished at
the same time to make it clear to me that the United States Govern-
ment had accepted the Beport of the British Behring sea Commis-
sioners as part of the original British Gase, under the assumption that
it contained all the evidence on which Her Majesty's Government
intend to rely in regard to pelagic sealing and the habits of the fur-
seal, and that no fresh matter relating to tliese subjects would be
introduced into the British Counter Case except in reply to the questions
raised in the United States Gase."

Sir Charles Russell. — That has been observed.

Mr. Carter. — What has been observed, Sir Charles'?

Sir Charles Eussell. — Excejit in so far as matters are stated in
reply, the Report of the British Commissioners contains all the matters
upon which we rely in regard to pelagic sealing and the habits of the
far- seal.

Mr. Garter. — That is your view?

Sir Charles Russell. — Yes.

Mr. Carter. — Allow me to say that we entertain a very different
view on the subject, and that the action of Her Majesty's Government
is as far as possible from an observance of that understanding-. Mr.
Herbert continues: — "Should they, however, have been mistaken in
this assumption, they intend to insist on their interpretation of the
Treaty before the Tribunal of Arbitration, and to o])pose the snbmis-
sion to the Arbitrators of any matters which might be inserted in the
British Counter Case which, in the opinion of the United States,
should not be justified as relevant by way of reply to their Gase.
1 expressed my gratitication at the settlement of the question, and
asked him whether the United States required an extension of time
offered by your Lordship for the prei)aration of their Counter Case."
To that statement by Mr. Secretary Foster Mr. Herbert made no

108 ARGUMENTS ON PRELIMINARY MOTIONS.

response otlier than that of consent to be implied from making no
(piiiliticntion of it. That the controversy was settled on the terms and
on the understanding that the Eeport of tlie Commissioners of Great
Britain with its Appendices contained all upon which the British Gov-
ernment intended to rely as to the nature and habits of fur seals,
except so far as concerned matters whicli miglit be relevant by way of
reply to what was contained in the United states Case, and no diplo-
matic representation to the contrary has ever been received from that
written to the United States.

Now, Mr. I'oster, notwithstanding- this oral communication with him,
addressed a further note, which was delivered on that day, and which
was the subject of Mr. Herbert's observations just read, — it was that
of November Dth, 1S92; and it controverted Lord Kosebery's interpre-
tation of the Treaty, and i)ointed out that there could not be two dis-
tinct hearings and two distinct decisions, and that all evidence of an
original character intended to support the contention in chief of the
respective parties should be presented in the original Case, and the
Counter Case be limited to evidence in reply. All that argument he
goes over in this reply, which is too long for me to read to tlie learned
Arbitrators; but some of its closing observations I will read.

"1 entirely agree with the observation of Lord Kosebery, to the
effect that the right of i)roperty in fur seals depends upon questions
of law; but I conceive that the precise questions of law cannot be
known, and cannot, therefore, be determined, until the facts out of
which they arise are known; and I cannot concur with Lord Rosebery
in the view which appears to be entertained by him, that the facts
concerning the nature and habits of fur-seals, and the modes by which
their increase may be made subservient to the uses of man without
endangering the existence of the stock, are not pertinent to the claim
of the United States to a ])roperty interest. On the contrary, I regard
these facts as in the highest degree important. Having thus exjiressed
the views entertained by the Government of the United States upon
the argument of Lord Kosebery in support of his interpretation of the
Treaty, it remains for me to add that 1 am insiructed by the President
to say that he a])preciates the spirit of equity and liberality in which
Lord Roseber^', while insisting upon hisowninteri)retation, piactically,
to some extent at least, and 1 hope fully, yields to the Government of
the United States the benefit of its interpretation by furnishing to tlie
latter the separate Report of Her Majesty's Commissioners, with the
permission that the same be treated as part of the original Case on
the part of Great Britain. If, as I believe and assume, this Report
contains substantially all the matter which Her Majesty's Government
will rely upon to support its contentions in respect to the nature and
habits of fur seals, and the modes of cai)turing them I entertain a
confident hope that all further difficulty upon the questions discussed
in this note may be avoided. I deem it necessary, however, to say
that the Government of the United States will, should occasion arise,
firmly insist upon its interpretation of the Treaty, and that it reserves
the right to protest against and oppose the submission to, and recep-
tion by the Arbitrators of any matter which may be inserted in the
British Counter Case which may not be justified as relevant by way of
reply to the case of the United States''.

Well, that I submit to the learned Arbitrators seemed to place the
question in this condition. A great advantage as we claim had been
taken over the United States by Great Britain in the manner in which
the Case on the part of Great Britain had been made out. That advau'

ARGUMEXTS ON PRELIMINARY MOTIONS. 109

tage slie could not be wholly deprived of, but it might be reduced if the
United States were tlien furnished with all the evidence upon Avhicli
she intended to rely to support her contention in regard to the nature
and habits of the seals. This Eeport of the British Commissioners with
its ap])endices was submitted to the United States as being all that they
intended to rely upon, except what they were permitted to rely upon by
way of reply, and accepted by the United States in that sense, and I
think we are justified in saying there was a pretty well understood
agreement entered into that tlie Counter Case of Great Britain wouhl
contain no new evidence upon the nature and habits of seals of a char-
acter which would have supported the original contention and which
would properly have found a place in the original Case of Great
Britain.

Now I come to the reception of the Counter Case. In due time the
Counter Case on the part of Great Britain arrived and was examined
by us and what did we find? That it contained no new evidence in
addition to that furnished by the Report of the British Commissioners
and its Appendices in rehition to the nature and liabitsof the fur sealf
Far otherwise! It had reams of evidence directly bearing on their
nature and habits; it had depositions almost witliout number concern-
ing the nature and habits of the fur seals. Some of these depositions
and evidence, bore u])on their face that they had been in the posses-
siou of Great Britain long before the original Case had been submitted
to us. Others were of a different character; but almost tlie whole of it
was evidence which would have been perfectly competent to have been
put into the original Case, because it was perfectly germane to the con-
tention by Great Britain as to the nature and habits of the fur seals.

Everything, of course, in relation to the nature and habits of the fur
seals, everything tending to shew at what time they come upon the
Islands, how long they remain there, the course of their migration,
whether they come back or not, or, whether, when the females go out
upon Behring sea they go out for the purpose of food, and how often
they go, all those things are pertineut and relevant to the question of
property, and will be alluded to, I venture to say, over and over again
when that question comes to be discussed, as substantiating the views
of Great Britain on that question of property. They are in no sense
new matter in reply to the evidence furnished l)y the United States in
its original case. There is a large amount of matter in the nature of
rei)ly there. There is a large amount of matter of that character; but
the bulk consists of original evidence in respect to the nature and
habits of the fur seal, which ought to have been inserted by Great
Britain in its original Case if it intended to rely upon it at all. This
matter in reply was matter tending to impeach our evidence. That, of
course, is strictly evidence in reply. Numerous attidavits are in the
British Counter Case tending to shew that the witnesses we called, and
Avhose depositions were contained in our original Case were not to be
believed upon oath, or that they had not made the statements Avhich
they were represented in our Case to have made.

The advantage which they had gained by the manner of making up
this case had been imi)roved to the utnu)st. The Pacific Ocean through
30° of latitude had been scoured to enable them to impeach our evidence.
We could not do that in respe(;t to their evidence because we did not
liave it. I do not complain of this replying evidence in the British
Counter Case. It was the advantage which they had gained by their
mode of making up their Case. We supposed that we had settled it,
but settled it upon the basis that no evidence other than that contained

110 ARGUMENTS ON PRELIMINARY MOTIONS.

in the Rey)ort of the British Commissioners should be received. Well,
we felt injured when we found that a contrary course had been adopted.
My learned friend has spoken about an eaoerness on our part to shew
a g-rievance. 1 admit we felt one. We felt one at each of these steps
wliich I have been describing. We could not feel otherwise; and I
submit it to the candor of every Gentleman upon this Tribunal
whether we were not justified in having* that sentiment of grievance.
We did feel it. But what were we to do? There was only one course
left to us, and that was the one which we indicated in the correspond-
ence we would take. And that was, that when the Tribunal met we
might move to strike out all matter which ought to have been inserted
in the original Case. We have not done that. Why have we not done
that? Well, there are several reasons for that. We could make an
overwhelming case calling upon this Tribunal to reject that matter.
But what would be the consequence of that? One of two things.
Great Britain might withdraw from this Arbitration if she could. It
is a question if she could not even then. But, if she could not do that,
an appeal would of course be made to the Tribunal to allow the evi-
dence which had been thus irregularly introduced to be in form pre-
sented. That w^ould involve a delay, — a postponement, — a very long
postponement for the purpose of enabling them to put themselves recti in
curia. Well, we cannot afford to delay. These poor seals are suffering,
or will suffer, when the wo^Z«S'yM'e«ditermiiuites, and we are very desir-
ous to obtain a decision of this Tribunal before the race shall be left
again to the mercy of pelagic sealing sealers? If the Tribunal should
strike out the matter and tlieu require the Arbitration to proceed, the
representatives of Great Britain could not complain of such a decision.
The difSeulfy would be one they had brought upon themselves, and
without fault upon our part, and the consequences might be justly left
to fall upon them. But we know the indisposition of a Judicial Tribunal
desirous of administering justice in a controversy, to go to the final
determination of it when they feel it to be true, from whatever cause,
that all the materials to which they could properly look to ascertain the
truth are not before them.

No Tribunal intent upon the business of administering substantial
justice ever enters upon a task of that sort except reluctantly, and I feel
bound to say also that, so far as I am concerned, nothing is more dis-
agreeable to me — I think it is so with every lawyer — to go into conten-
tion with a crippled adversary, no matter on what ground that adver-
sary has been crippled. And, thinking that, after all, the truth in
reference to the nature and habits of the fur-seals was established on
the whole by such a weight of testimony that it could not be seriously
affected, and that the most important interests would not be imperilled,
we concluded to waive our objections to this testimony thus wrongfully
introduced, and to let it stand in the Counter Case for what it was worth,
subject however to that sort of comment which we are entitled to make
in reference to it whenever upon the main arijiument the question arises
as to the confidence and weight to which it 15 entitled.

There was one particular, however, in which we felt bound to make
a motion, and we did make it, and that was to dismiss from the atten-
tion of the Tribunal so much of the matter contained in the Counter
Case of Her Majesty's Government as related to new claims for dam-
ages as to which no mention was made in the original Case. That
motion was made, and was brought on by us at the same time with the
one which I am now arguing; but, at the suggestion and under the
direction of the President, the hearing of it was deferred.

ARGUMENTS ON PRELIMINARY MOTIONS. Ill

Kow, that, may it please the Arbitrators, is an account — I think a
just account — of the manner in Avhich these Oases have been made up
and of the respective theories of the parties in making them up. The
theory of interpretation upon which the representatives of Great
Britain have thus far proceeded, is tliis: That the original Cases are
to contain notliino- upon the subject of Eegulations until the Tribunal
has determined that it is necessary to enter into the consideration of
that subject by a detei'mination of the questions of exclusive jurisdic-
tion in such a manner that the concurrence of Great Britain is neces-
sary to regulations to i)reserve the fur seal ; that when they have made
that determination, and not till then, is it proper that any evidence
bearing upon the question of regulations should be submitted to the
Tribunal. That has been the British contention up to the time of the
present argument. That is the ground assumed in the Cases and in
the Counter Cases on tlie part of Great Britain. That is the ground
taken by Lord Eosebery in his argument; and it is a necessary conse-
quence of that theory that there are to be two hearings, two decisions,
two awards, althougii the Treaty makes provision but for one hearing,
one decision, one award; and I want to call your attention here to the
X)osition which has been taken in the British Counter Case. I have
read from the Case and I have read from the diplomatic coinmunica-
ations to show that that was the position of Great Britain up to the
time of their delivery of the Counter Case. I have not read anything
showing that it continued to be their position alter that time. I now
call the attention of the Tribunal to the British Counter Case, and
what is said upon page 3 —

The subject of the regulations (if any) which are necessary and the waters over
which the regulations shall extend, referred to in Article VII of the Treaty, is con-
sidered in Part II. For reasons more explicitly stated in correspondence which will
be found in the Aj)pendix. —

(That is the Eosebery and Foster correspondence. — )

For reasons more explicitly stated in correspondence which will be found in the
Apyiendix, the consideration of this point has been created in this Counter Case, but
only in deference to the wish expressedb.y the United States that argument upon all
the questions with which the Arbitrators may have to deal should be placed before
the Tribunal by means of the Case and Counter Case.

That is not a correct representation of any wish ever ex])ressed by
the United States, or of any views expressed by the United States.
The views expressed by the United States were that all original evidence
upon the question of regulations should go into the Case, and not into
the Counter Case.

Lord Eosebery continues : "The Government of Her BritannicMajesty
have adduced these arguments under protest, without prejudice to their
contention that the Arbitrators cannot enter upon or consider the ques-
tion of the proj)osed internationalregulations unt il they have adjudicated
upon the five questions enumerated in Article VI upon which they are
by the terms of the Treaty required to give a distinct decision; and
upon the determination of which alone depends the question whether
they shall enter upon the subject of regulations. Her Majesty's Gov-
ernment reserve also their right to adduce further evidence on this
subject, should the nature of the arguments contained in the Counter
Case on behalf of the United States render such a course necessary or
expedient."

The Tribunal will observe that the learned counsel for Great Britain
now repeat their adhesion to the interpretation contained in the Eose-
bery corresjiondeuce, that it is not regular or legitimate, or permissible,

112 ARGUMENTS ON PRELIMINARY MOTIONS.

to .submit tlie evidence upon the subject of regulations to the Tribunal
until after tlie decision upon the points mentioned in re.i>ard to the
exclusive jurisdi(;tion over Behrin<^- sea. That is their position still.

My learned friend, in the course of his argument yesterday, I think,
in speaking of the course whu-li Her Majesty's Agent had pursued iu
the matter, said: "Why, we did it in good faith; we did all of this in
good faith. You don't deny that, do you? We told you about it";
And he read this extract from their Counter Case, apprising us of their
interpretation: (Mr. Carter read the passage).

Sir EiCHARD Webster. — We also mention it at page 1G6 D in the
Counter Case.

Mr. Carter. — Would you like me to read anything there?

Sir KiCHARD Webster. — No; I merely meant that there is a dis-
tinct reference to this particular document.

Mr. Carter. — Do I charge bad faith in tliis matter? I have under-
taken to avoid it. Do I really believe tliat Her Majesty's Agent and
his advisers when they came to prepare the Case of Great Britain in
this important controversy, said to themselves in eflect: " VVe will
teach these Yankee lawyers a trick worth knowing in regard to the
manner in which the Case may be made up, whereby we can get the
o])]iortunity of answering their allegations and evidence and dej)rive
them of the opportunity of answering ours." Do I believe that these
gentlemen concocted any such scheme as that? No; I don't believe it.
1 would not believe it. No consideration would induce me to believe it.
I do not think it. I cannot help saying that I think they have acted
under an erroneous impression as to the interpretation of the Treaty;
and 1 cannot thiidv that they gave to the interpretation of the Treaty
that study which its importance demands.

But the question of good faith or bad faith is wholly unimportant
as far as the results are concerned. The advantage in either case, they
got. It does not diminish the magnitude of the advantage which they
derive from the course which they took that they did not contrive for
it. 1'he advantage which they gained is as great, whatever view may
be taken of that matter.

So also they say: "Why, we told you that we did it." Of course it
was not necessary for them to tell us they had done it, when we looked
into their Case and saw it did not contain a single word in reference
to the nature and habits of tlie fur-seal, and contemplated the possi-
bility that they might fill their Counter Case witli evidence of that
character. We saw that they liad gained their advantage, and it was
not necessary for them to tell us so.

If they were going to mnke the case any better by telling us any-
thing about it, tlie time to have told us about it was before the time
for tlie exchange of the Cases. That was the time. We might then
have considered how we Avould make up our Case if they proposed to
make up theirs iu that manner.

Now, my learned friend has re-stated the interpretation of Great
Britain. Upon that interpretation I am going to make, not many
observations, but a few, for the purpose to some extent, of showing
that they are entirely erroneous. The learned counsel, has dispensed
with the necessity, for he says that in part at least, it is erroneous.
He says that the notion of two hearings and two decisions is nonsense.
He says it is nonsense. I have not said that. Those are his own
words in reference to it. But 1 wish to show that it is entirely erroneous.

In the tirst place, what is the question? The question is as to the
time and the manner in which evidence is to be submitted to the Arbi-

ARGUMENTS ON PRELIMINARY MOTIONS. 113

trators. It is not a qitestion at all as to the time or the manner in
which the Arbitrators are to determine any of tlie qnestions snbmitted
to tlieni nnder the Treaty. That is another matter.

In the first place, there is one Case provided for, and only one; there
is one Connter Case i)rovided for, and onh/ one; and that is the only mode
provided for by the Treaty in which evidence can be snbmitted at all.

In the next place, there is a written argument provided for, and only
one. In the next place, a hearing is provided for, and the day fixed for
it, and only one hearing. In the next place, an mcard is provided for,
and only one award.

It is entirely manifest, therefore, that there is to be bnt one decision
in this Arbitration. The evidence is now all before the Tribunal. It is
in part argued in writing. It will be fully argued orally. The Tribu-
nal will retire for the purpose of decision; they will proceed, in the
first place, I sui)pose, to decide the first five questions submitted by
the Treaty. If their decision leaves the subject in such condition that
no Eegulations are necessary for the preservation of the fur-seal, they
will not consider any Regulations at all, but make up their decisiou
upon the questions which they do decide, and j)ublish it by their award.
If, however, their decision should be of a character to make it neces-
sary to go into the question of Regulations, they will go into the ques-
tion of regulations; and whenever they determine them they will
include in their award the decision upon the five first questions sub-
mitted to them, and also the Kegulations which they determine upon
and establish, and that all at one time, and in one document, by one
instrument, one act.

That will be the course of thing's. Now we come to see what is the
contentioTi upon the other side and what there is to support that.
Article VII contains the first tiling which they rely upon:

"If the determination of the foregoing questions as to the exclusive
jurisdiction of the United States shall leave the subject in such a
position that the concurrence of Great Britain is necessary to the estab-
lishment of Kegulations for the pro[)er ju^otection and preservation of
the fur-seal in or habitually resorting to the Behring Sea, the Arbitra-
tors shall then determine what concurrent regulations outside of the
jurisdictional limits of the resix'ctive Governments are necessary."

That creates no difficulty. It says that the Arbitrators "shall then
determine.'''' It does not say that the Arbitrators shall then proceed to
receive evidence; nor does it intimate it.

The President,— Do you not think the word " then " covers the
same ground"^ " Shall then determine the concurrent Regulations, and
to aid them in that determination, the re])ort of the joint commission
to be appointed shall be laid before them." I mean to say does not the
word "then" api)ly to the latter part of the phrase so that it means
" Shall then be laid before them" ?

Mr. Carter. — That would be putting in another "then"?

The President. — No; I mean to say do you not think the word
"then" covers both jiarts of the i»hrase? I ask for your opinion.

JNIr. Carter. — I don't think it does at all. By grammatical position
the word "then" does not belong- there. If w^e could gather from the
Treaty generally that there was to be a separate decision upon the first
five questions, and then a recei)tion of evidence ujion this point of regu-
lations; if we could gather from the Treaty generally any evidence that
that was the pur])ose and object of the parties, then certainly the word
"then" would qualify the whole matter; but as the Treaty is written
it is repugiumt to it.
B S, PT XI 8

114 ARGUMENTS ON PRELIMINARY MOTIONS.

The Peesidbnt. — That is your point.

Mr. Carter. — Yes. It is pUiiuly repuijiiaTit. If you make it qualify
that matter, then you liave got to have two submissions of evidence,
two hearings, two decisions, and two awards. That is a necessity.
Well, now, that is precluded absolutely by the Treaty; and we have
rales of law that whenever the general purpose and spirit of an agree-
uieiit — and a Treaty is an agreement — is manifest, and there is some
particular clause which is ambiguous, and which maybe read oneway,
or may be read another way, you must read it in accordance with the
general purpose and spirit of the agreement. Therefore I say at once,
as this language does not in terms require that the evidence should
then be submitted, we must read it in accordance with these other pro-
visions of the Treaty, which do require that there shall be but one
hearing and one submission of evidence.

The President. — Perhaps it would be well to suspend your argu-
ment until tomorrow.

Mr. Carter. — I shall have occasion to occupy a little further time,
not long, I hope.

The Tribunal thereupon adjourned until tomorrow, Friday, April
7th, 1893, at 11:3'.) a. m.

SIXTH DAY, APRIL 7™, 1893.

The President. — Will you please to continue your argument, Mr.
Carter?

Mr. Carter — Mr. President, my argument yesterday was very
largely confined to a history and a description of the modes in which
the Case and Counter Case had been prepared, of the different views of
the parties respecting the interpretation of the Treaty upon the point as
to how they should be prei)ared. The efforts which had been made to
accommodate those differences of opinion, the hope which had been
entertained that those differences had been accommodated, the failure
of that hope, all of which have been subjects of debate by Counsel who
have preceded me, and all of which have a bearing, although not a vital
bearing, on the immediate question before the Tribunal.

Kear the close of the session, however, I was dealing particularly with
the support which is supposed by Counsel for Great Britain to be given
for their interpretation of the Treaty in the language of the seventh
Article. That is the subject, therefore, upon which I shall resume my
line of argument, and as it may not be fully in the minds of the Arbi-
trators, I shall again read the Article and state the contention which is
built upon it by the Counsel for Great Britain. "If the determination
of the foregoing questions as to the exclusive jurisdiction of the United
States shall leave the subject in such position that the concurrence of
Great Britain is necessary to the establishment of regulations for the
proper protection and preservation of the fur-seal in, or habitually
resorting to, the Behring Sea, the Arbitrators shall then determine what
concurrent Regulations outside the jurisdictional limits of the respective
Governments are necessary, and over what waters such Regulations
should extend, and to aid them in that determination the Report of a
Joint Commission, to be appointed by the respective Governments, shall
be laid before them, with such other evidence as either Government may
submit,"

The suggestion is, the contention is, that this means that the Report
of the joint Commissioners thus referred to and the other evidence thus
referred to are to be laid before the Tribunal after the decision to
which it shall have arrived and not before. I stated at the time, that,
upon the face of the Article^ there was nothing at all unreasonable in
that suggestion, and that it might possibly be so; but when you fully
consider the character and consequences of that interpretation, it seems
to be wholly inadmissible for these reasons. — First, it supposes that
there are to be two decisions by the Tribunal: first a decision upon the
questions as to tlie exclusive jurisdiction of the United States, and
then a decision upon the subject of regulations; and if two decisions,
then two awards, all of which is in direct repugnance to the terms of
the Treaty. In the next place, it supposes tliat a part of the evidence
in the Case, and I may add, and should add, by far the most imj^ortant
evidence in the Case — more important in the sense that it is tlie only
part of the evidence which is disputable — that the disputable part of

116

116 ARGUMENTS ON PRELIMINARY MOTIONS.

tlie evidence is to be laid before the Tribunal at some future time and
in a manner for which the Treaty makes no distinct provision whatever.
It appears upon the face of the Treaty tliat most carelnl provision was
made for the submission of evidence to each party by the other, to the
end that they should have an opportunity of answering it. We have
already seen that the only disputable part of the evidence, the only
part upon which it is to be ap])rehended that there is to be any con-
siderable dispute, and, therefore, the only part which there is any
necessity for answering, is in reference to the nature and habits of the
seal, and seal life, and so forth. Now, the contention on the other side
is that, as to the part as to which there is no im])ortance in having an
opportunity for rejdy, most careful provision is made for giving an
opportunity for reply; but, as to that part of the case where the evi-
dence is likely to be contradicted and, therefore, as to which there is
particular and special necessity for an opportunity for reply, the Treaty
has failed to make any provision. That is so unreasonable, so contrary
to the purposes of the i)arties, that it seems to me it should be imme-
diately rejected, unless the language of the Article is so distinct and
unequivocal as to leave no room for doubt. When we look at the lan-
guage of tlie Article, we perceive that it is not so distinct and unequivo-
cal, for it does not say that this Report of the Commissioners and other
evidence shall then he laid before the Arbitrators, but simi)ly that it
shall be laid before the Arbitrators, and the question of the time when
it is to be laid before the Arbitrators is left undetermined and unex-
pressed by the Article. How, then, are we to determine the time when
this disj)utable evidence is to be submitted ? How are we to determine
that? By looking to the purpose and spirit of the Treaty; and when
we find that distinct provision has been made for the introduction of
evidence, distinct provision made for giving the two sides an oppor-
tunity each to answer the evidence and allegations of the other, we
must at once come to the conclusion, as 1 resj)ectfully submit, that that
is the method and that is the time when this evidence is to be sub-
mitted. So much for that. It seems to me that those observations
effectually dispose of any support, or of any supposed support, which
may be furnished to the contention of Great Britain by the language of
the Article VII.

But that is not all their argument. They then refer to the language
of Article IX and they conceive that that furnishes them strong sup-
port to their contention. I will now read Article IX. " The High Con-
tracting Parties have agreed to appoint two Commissioners on the part
of each Government to make the joint investigation and Report con-
templated in the preceding Article VII, and to include the terms of the
said Agreement in the jiresent Convention, to the end that the joint
and several Rei)orts and recommendations of said Commissioners may
be in due form submitted to the Arbitrators, should the contingency
therefor arise, the said Agreement is accordingly herein included as fol-
lows " : And then the Agreement is stated and it is further added :
"These reports shall not be made public until they shall be submitted
to the Arbitrators, or it shall appear that the contingency of their being
used by the Arbitrators cannot arise." The learned Arbitrators will
perceive that "contingency" is here used in two places, and it is
insisted by our friends on the other side that that word " contingency"
refers to the contingency mentioned (although not mentioned by the
use of that very word), in Article VII, namely, the contingency that
the Tribunal shall decide the questions, as to the exclusive jurisdiction
in such a manner as to leave the subject in a condition which would

ARGUMENTS ON PRELIMINARY MOTIONS. 117

make it necessary to consider the question of concurrent Regulations.
Tliey put that interpretation upon the word "contingency". That,
alioW me to say is not unnatural, nor will I say it is unreasonable. We
naturally look for the explanation of any word in any agreement to
some other part of the agreement, and when there is a contingency
expressed in the seventh Article, they infer that that is the contingency
mentioned. But is it so? Well now, we must not take it that it is so,
and thus draw upon ourselves all the consequences, the inadmissible and
unjust consequences, which I have already mentioned, unless there is
no other explanation of that word "contingency". If there is any
other explanation of that word " contingency", which is consistent with
the main purjwse and object of the Treaty — consistent with its prime
condition, that the parties shall have an opportunity to answer the evi-
dence and allegations of each other, — we must adopt such other inter-
pretation. What I shall now have the honor to submit to you is that
there is another contingency, and a contingency which is referred to by
this ninth Article, and that the contingency mentioned in the seventh
Article is the one intended. To make my meaning clear on this point
it is necessary for me to make a brief recital. In the negotiations and
correspondence between the parties, diplomatically, which led to the
adoption of this Treaty of Arbitration, there were at all times two main
objects in view. The whole scheme of a settlement of this controversy
wore from the beginning, and preserved until the last, two aspects quite
distinct. The first aspect was that an effort should be made to settle
the entire controversy by convention, and without Arbitration; the sec-
ond aspect was that, in case of the failure of that eff'ort, Arbitration
should be resorted to.

To make that clear, I must have recourse to the first occasion, in the
course of the diplomatic correspondence, in which this settlement by
Arbitration was referred to; and I call attention to the note of Sir
Julian Pauncefote to Mr. Blaine, of April 29tli, 1890, which is contained
in the Appendix, volume III of the British Case, at page 455. " Wash-
ington, April 29th, 1890. Dear Mr. Blaine. At the last sitting of the
Conference on the Behring Sea Fisheries question, you expressed doubts,
after reading the memorandum of the Canadian Minister of Marine and
Fisheries, which, by your courtesy, has since been printed, whether
any arrangement could be arrived at that would be satisfactory to
Canada." I should state here that the negotiations had been proceed-
ing between the parties at that time for a very considerable period, and
efforts for adjustment had been made. The obstacle was the objection
of Canada. Pro]iosals had been made by the United States for a set-
tlement, and had been, provisionally at least, acceded to by Lord Salis-
bury. The conclusion of them had been interru])ted by the objections of
Canada, and Mr. Blaine here expressed the doubt whether these objec-
tions of Canada coukl ever be removed. Well, in order to answer that
objection, Sir Julian Pauncefote j)roposes, and proposes for the first
time, a scheme of settling the (controversy whicli, presumably, as it
came from him in answer to that suggestion on the part of Mr. Blaine,
would be satisfactory to Canada.

He continues: — "You observed that the proposal of the United
States had now been two years before Her JMajesty's Government, that
there was nothing further to urge in support of it, and you invited me
to make a counter-i)roposal on your behalf". He says " your", but one
would supi)ose it should be "my". "To that task I have most ear-
nestly a|)])lied myself, and while fully sensible of its great difticulty,
owing to the conflict of opinion and of testimony which has manifested

118 ARGUMENTS ON PRELIMINARY MOTIONS.

itself in tlie course of our discussious, I do not despair of arriving at a,
solution wliicli will be satisfactory to all the Governments concerned".
He then <;oes on to say that this scheme he has i)repared and submits
in an iiu-losnre, and that inclosnre is to be found on pa<;e 457. It is
entitled: — ''Draft Convention between Great Britain, Itussia and the
United States of America, in relation to the fur-seal Fishery in the
Behring's Sea, the sea of Ochotsk, and the adjoining waters ". "Article

1. The High Contracting Parties agree to appoint a mixed Commission
of Experts." — here is the first occasion of the suggestion of this Com-
mission of Experts — "who shall inquire fully into the subject, and
report to the High Contracting Parties within two years from the date
of this Convention the result of their investigations, together with their
opinions and recommendations on the following questions: — 1. Whether
Eegulations properly enforced upon the breeding islands (Robin island
in the sea of Ochotsk, and the Commander islands and the Pribilott"
islands, in the Behring's Sea) and in the territorial waters surrounding
those islands, are sufticient ibr the preservation of the fur-seal species.

2. If not, how far from the islands is it necessary that such Regulations
should be enforced in order to jireserve the species'? 3. In either of
the above cases, what should such Regulations provide*? 4. If a close
season is required on the breeding islands as well, what extent of
waters and what i)eriod or periods should it enibracef

The Commissioners were to be appointed to report for the informa-
tion of the Governments on those points, and the}' were to be experts.
"Article II. On receipt of the Report of the Commission, and of any
separate Reports which maybe made byindividual Commissioners, the
High Contracting Parties will proceetl "forthwith to determine what
International Regulations, if any, are necessary for the purpose afore-
said, and any Regulations .so agreed upon shall be embodied in a further
Convention, to wliich the accession of the other Powers shall be invited."
Now the next stage was to endeavour to come to an agreement upon
the basis of such Report. "Article III. In case the High Contracting
Parties should be unable to agree upon the Regulations to be adopted,
the questions in difi'erence shall be referred to the arbitration of an
imi)artial Government, who shall duly consider the Rej^orts herein before
mentioned, and whose award shall be final, and shall determine the
conditions of the further Convention." As the original suggestion of
the whole scheme thus finally came to the form and shape in which it
now stands, what did it contemplate!

T'he President. — May I ask the gentlemen of the United States
whether Russia, which was supposed to be a party in this intended
Convention, took part in those negotiations'?

Mr. Carter. — Russia was to a certain extent consulted; and it will
appear on the face of this suggested scheme that the contemplation was
that Russia should be brought in. I could not say now, because I can-
not state with accuracy, how far Russia was at that time an actual par-
ticipating party, or only whether at this time it was contemplated that
she should be made a ])articipating party.

The President. — Mr. Foster might be perhaps aware, and could tell
us whether the draft of the Convention was communicated in fact to
Russia, or whether it was a draft that remained between the United
States and England, because then, of course, it would have much less
authority, I might say.

Mr. Foster. — I am not j^repared at this moment to give an explicit
answer. I was not at that time Secretary of State, and I could only,
therefore, make a reply from my knowledge of the correspondence. I

ARGUMENTS ON PRELIMINARY MOTIONS. 119

know tliat previous to tliis date, n few months previous, the British
INIinister, the Russian ]\iinister and tlie then Secretary of State, Mr.
Bhiine, were in active and frequent conference on tliis subject. 1 shall
have to refresh my memory as to the precise date of their (conference in
connection with this matter, and I am not, therefore, prepared at this
time to give an explicit answer as to whether this particular proposition
was formally submitted to the Russian Minister or not. That can at a
later stage, before the discussion closes, be answered.

Sir Charles Russell. — I may say. Sir, that I am in a position to
state to the Tribunal what the facts were on this point. It was contem-
plated, as the concluding Article shows, that the accession of other
Powers should be invited to the Conventi(m; and there were communi-
cations with other Powers, but no other Power became a party to the
Convention.

The President. — You will see that this is not a Convention but a
draft of a Convention; and the purport of my interrogation was this.
The authority of the draft, which is submitted to us by Mr. Carter, and
used as a part of his argument, will have more or less to be taken into
consideration according to the stage of diplomatic proceedings which
it indicates. Of course, if it had been communicated to Russia, Mr.
Phelps as a Diplomatist would certainly acknowledge that it would
have had more consistency, and, consequently, more importance, than
if it was merely a sort of informal draft or a sort of continuation of
private conversations between the American and English Governments,
or their representatives.

Mr. Phelps. — My learned friend is right in saying that at no time in
the progress of these negotiations was any Convention actually entered
into between the United States and Russia; nor did Russia become
formally a party to any convention between the United States and
Great Britain; but in the years 1887 and 1888 at any rate, when these
negotiations were first commenced on this subject, the representatives
of Russia in London, as the correspondence tliat is before you shows
(though I cannot at this moment refer you to the particular pages),
were invited to participate and did participate and gave informally
their sanction to the Agreement and their promise to join it if it should
be consummated, but as it never was consummated at any time, that
fell through. The correspondence, as I have said, — the diplomatic cor-
respondence — during those years will prove that. How it was as late
as 1890, I am at this moment unable to say, — whether there was any
correspondence with Russia at that time or not.

Sir Richard Webster. — Might I point out. Sir, that the draft Con-
vention, as to which you have asked the question, is the one submitted
in the year 1890, as Mr. Phelps points out, long after the date he refers
to of communications with Russia. Whatever may have passed with
reference to communications upon other matters, it will be found in the
correspondence that that draft Convention was not submitted to Russia,
nor were they asked to become parties to that; and I think it will
appear from the concluding words of Article 12 of that draft, that
" The High Contracting Parties agree to invite the accession of the
other Powers to the iiresent Convention" — I think it will be found, when
the correspondence is traced, that the draft Convention was not sub-
mitted to Russia.

Mr. Phelps. — I may say, Sir, that we will have references prepared
and submitted to the Tribunal as to this correspondence on either side.

The President. — However, it was drawn up in such a way as to
suijpose that Russia would be a party, so that the other parties, to

120 ARGUMENTS ON PRELIMINARY MOTIONS.

wliicli Sir Kicluivd Webster alluded, would be parties other tliau Eussia.
It was to be a ( -onveutiou between three parties.

Mr. Phelp!^. — There was a correspoiulenee between Mr. Bayard, who
was then Secretary of State of the United States, and various other
Powers on this subject, — Japan, Germany, and S(>ine others. So that
the United States from the character of their replies had a right to
expect, if they were fortunate enough to conclude a Convention with
Great Britain, that the adhesion of tliese other Po^yers would be given.
It was contemi)lated by both parties that the adhesion would take place,
if that was ratified between Great Britain and the United States.

The President. — And Eussia?

Mr. Phelps. — And Russia.

Sir Charles Russell. — This is really very wide of the mark.

The President. — My question was perhaps rather more a diplomatic
than a judicial one; but my dijdomatic colleagues will not be surprised
at the importance I attach to these details, because they know by the
practice of diplomatic life that a Convention would scarcely be prepared
by two parties when it is to result in a Convention between three. There
is a certain difference which my diplomatic colleagues on the Arbitra-
tion will understand; and that was the purport of my observation.

Mr. Carter. — Permit me to say, Sir, that the interrogatory you have
been pleased to address to ns and the various answers given to it may
become at some time interesting at least, if not important — to know how
far Russia did participate in the negotiations in reference to a Treaty —
how far she was expected to participate, and when all such participation
ceased. For the present, however, I do not think those enquiries are
material; and, for the object for which I call the attention of the Tribu-
nal to the proposed draft Convention, they are wliolly, as I conceive,
immaterial. Tlie purpose which I have in view is to call the attention
of the Tribunal to the first suggestion of a settlement of this contro-
versy through the combined instrumentality of a joint Commission and
an Arbitration.

The President. — In order to exhaust this, although Mr. Carter does
not find it quite material to the point, I would beg' permission to remind
him of an extract from the despatch of Sir .Julian Pauncefote to Mr.
Blaine received on April the 30th. It is in the appendix of the Case of
the United States, Vol. I, page 20G — the last paragraph of page 206. Sir
Julian Pauncefote says : " I have, out of a deference to your views and to
the wishes of the Russian Minister, adopted the Fishery line described
in Article V" — it is quite another object, but it proves that at that
time tliere was a communication with Russia — " and which was suggested
by you at the outset of our negotiations. The draft, of course contem-
plates the conchision of a further Convention after full examination of
tlie Report of the mixed Commission. It also nmkes i)rovisions for the
ultimate settlement by Arbitration of any differences which the report
of the Commission may still fail to adjust." That is the draft Conven-
tion which you were alluding to.

Mr. Carter. — It is.

The President. — It is the same draft.

Mr. Carter. — It is.

The President. — That proves that you were in communication with
Russia more than you thought yourself. That observation is rather an
advantage to you.

Mr. Carter. — We may have been in the most intimate and daily
comnuinication with Russia for all I know, but whether that be so or
not, it is foreign to the purpose of my enquiry.

ARGUMENTS ON PRELIMINARY MOTIONS. 121

The President. — Well, perhaps not quite so; because it alludes to
the document and refers to it and therefore gives it, more authority in
a diidomatic point of view at any rate, although not perhaps from a
judicial i)oiut of view.

Mr. Carter. — What I am now on is to know the meaning of the
word "contingency" in the Article IX of the Treaty between the
United States and Great Britain. Allow me to repeat, therefore, that
the lirst suggestion, so far as I am aware, of the scheme of settling this
controversy through the joint instrumentality of a Commission and of
Arbitration is to be fouud in this note of Sir Julian Paun^efote, and
that scheme you will perceive is this. It contenii)lates the appointment
of a Commission of Experts to inquire into tlie whole business of seal
life and to report upon the question of llegulations. It contemplates,
in the next place, tlie probability that when tliat report is received by
the two Governments they can conclude without ditticulty and witliout
any further instrumentality a Convention forthe puri)ose of preserving
seal life by Regulations. It contemplates in the next place, that is to
say, in the contingency that they should uot be able to agree, that the
questions as to Avhi('h they should disagree should be settled by the
Arbitration of an impartial Government — that was the sort of Arbitra-
tion then thought of.

The learned Arbitrators will bear in mind, therefore, that the Arbi-
tration thus foreshadowed at this early period was solely confined to
the question of Regulations necessary to preserve seal life. It was to
have nothing to do with Russian pretensions of dominion in Behring
sea, — nothing to do with the pretensions of the United States as to
dominion in Behring sea, — nothing to do with any question of property
in the United States in the seals, but had solely to do with the question
of what regulations might be necessary for the purpose of preserving
the race of seals. That was the sort of Arbitration proposed, and it
was to be limited to that.

According to that scheme, therefore, if the two Governments came to
an agreement on the basis of the Reports, that .would be an end of the
whole business, and there would be no Arbitration, although it was pro-
posed by the Convention that an Arbitration should be provided for, to
spring into operation in the case of an inability of the two Governments
to agree, and then to decide as to what Reguhxtions should be needed.
That was the scheme. You will perceive, therefore, that the Reports of
this Commission would be laid before the arbitration of an impartial
Government in the contingency, and only in the contingency, that the
Governments should fail to come to a settlement of the controversy by
Convention based upon those Re])orts. Therefore, at the very outset
of these negotiations there was a double aspect to the scheme of settle-
ment: (1), an effort to settle without Arbitration; (2), a provision for
calling the ])owers of an Arbitration into operation in case of a failure
of that eflbrt, and it was only in the contingency of such failure that
any use would be made of these Reports of the Joint Commission in
any Arbitration. Now, that double aspect thus stanqied upon this
scheme of settlement at the start has been preserved all through the
negotiations and is still preserved in this Treaty. In the course of the
negotiations, and they were quite long, and many difficulties were
encountered before tlie thing was got into actual shape, the scope of
the suggested Arbitration was greatly enlarged. Instead of being con-
fined to the question of Regulations for the i)reservation of fur seals,
it was to include questions as to the exclusive jurisdiction in the United
States in Behring sea, questions as to the property of the United States

122 ARGUMENTS ON PRELIMINARY MOTIONS.

iu the fur seals, not embraced in tlie original suggestion, — the scope of
the Arbitration was enlarged, but it Avas still contemplated, although
an Arbitration was agreed upon and provided for, that it niiglit never
have to be resorted to, and would not be resorted to if the parties should
come to an agreement by Convention. If the Joint Commissioners
should report to the two Governments, and the two Governments should
find themselves able to come to an agreement in respect to Eegulations,
why then the contemplation was that tliis Arbitration should not be
carried forward. Of course it would be idle, preposterous indeed, to
carry it forward after the whole controversy had been settled by the
parties, — to call upon Arbitrators to determine what rights there were
between the parties when they liad made a settlement with each other
tliat dispensed with the necessity of enquiring into rights at all.

Now we find that, when they assumed final shape, the Agreement for
the Arbitration and the Agreement for the appointment of the Joint
Commissioners were separate. They were signed separately before the
Treaty was finally brought out, and those separate instruments tlius
separately signed are found upon page 9 of the Ai)])endix to the British
Ccmnter Case, Yolun^e 1. This is the text of the Agreement for the
Joint Commission. " Each Government shall appoint two Commis-
sioners to investigate, conjoiiitly with the Commissioners of the other
Government, all the facts having relation to seal life in Behriug sea, and
the measures necessary for its proper protection and preservation. The
four Commissioners shall, so far as they may be able to agree, make a
joint Report to each of the two Governments ; and they shall also re])ort,
either jointly or severally, to each Government on any points npon whi'5h
they may be unable to agree. These Keports shall not be made public
nntil they shall be submitted to the Arbitrators, or it shall api)earthat
the contingency of tlieir being used by the Arbitrators cannot arise."
Now, this Avord "contingency" occurs there. Wliat is that contin-
gency? Why, it is the same contingency contemplated bj^ the scheme
of Sir Julian Paunceibte; that is, the contingency that the Government
shall not be able to come to an agreement by Convention, which should
settle this matter witliout the intervention of an Arbitration.

Mr. Justice Harlan. — Do you recall, Mr. Carter, just here, on what
date the Governments informally agreed upon those terms for a Joint
Commission?

Mr. Carter. — I cannot, Sir.

The President. — Article IX refers to an agreement.

Mr. Carter. — I cannot do that now, Sir; but I shall very presently
refer to evidence which will give you some information npon that point.

The President. — Was the agreement by which the Governments
agreed upon a Joint Investigation and Report, the object of a formal
convention, or was it merely an "unofficial" agreemenf?

Mr. Justice Harlan. — I have a general recollection, from looking at
the documents before this hearing was commenced, that the terms for
this Commission, just as they appear in Article IX, were assented toby
tlie two Governments as early as Julj^, 1891.

Mr. Carter. — I shall be able to show that they were assented to
before that.

Senator Morgan. — I would like to enquire, from anyone who has the
information, whether these Commissioners had not, in fact, made their
examinations and comj)leted their labors on the Pribilof Islands before
this Treaty was signed?

Mr. Carter. — Well, they had been appointed long before that. How
far they had proceeded with their labors I cannot say; but the matter

ARGUMENTS ON PRELIMINARY MOTIONS. 3 23

wln'ch I am lioiiiji' immediately to call the attention of the learnerl Avbi-
trators to will throw light upon that i)oint, if they will allow me to i)ro-
ceed. — I am informed by Mr. Foster that they had, at the time that
the Treaty was actually ratified, completed their labors.

j\Ir. Foster. — That is, labors of investigation in the field.

Senator Morgan. — 1 beg leave to say that it came to my attention
personally, as a member ot the Senate of the United States, that the
Commissioners had been investigating the subject before tlie Treaty
was actually signed; but now, whether that appears upon the Cases
anywhere, or not, I do not know.

Mr. Carter. — Well, I am going to show it, if the learned Arbitrator
will allow me. What lias been said shows, and I suppose that I may
appeal to the diplomatic knowledge of the President to the effect that
agreements between two Governments, which it is contemplated will be
eventually put in the form of a Treaty and regularly ratified, and which
agreements can have no vital force until they are so incori)orated in a
Treaty, are, nevertheless, in many cases nmde long before the Treaty,
and acted upon long before the Treaty, it being supi)osed by both
parties that they have come to such a conclusion ui)on all the details
that there will be no difficulty in ])rocuring the settlement of the Treaty
and its ratificntion. That took place here. This Treaty is dated on the
2yth February, 1802, and so far as an actual binding obligation, evi-
denced by a forjnal Treaty, goes for the appointment of these Commis-
sioners, none existed until February, 1892, and yet you find that on the
24th June, 1891, the Marquis of Salisbury appointed Sir George Baden-
Powell and Dr. Dawson Her Majesty's Commissioners, to proceed to
Behring Sea and make these proposed investigations, and they went
immediately thereafter and engaged in the work, and an actual com-
mission was issued to them, as you will observe.

Senator Morgan. — I wish to en(]uire, Mr. Carter, if you will allow
me, whether their lleport which is embraced in the British Case was
based upon that investigation?

Mr. Carter. — It was. That very Keport is the one based u])ou that
investigation, — having no other foundation. You will see all this from
the preliminary pages of the British Keport itself. It begins by instruc-
tions to the British Commissioners, from the Marquis of Salisbury, and
they are dated at the Foreign Office, June 21th, 1891, and on the sixth
of these preliminary i)ages is the actual Commission issued to them as
Commissioners; and that is dated the 22d June, 1891, nearly a year
before the ratification of the Treaty.

Why was all this? It was for the purpose of enabling those Com-
missioners to make their investigation and make their Joint reports, and
give the two Governments an o])portuuity of coming to an agreement
by convention before it would be necessary to take any steps to call
Arbitrators together. If, when that Keport was made, the two Govern-
ments found themselves able to come to an agreement respecting the
measures necessary for the preservation of fur seals, no Arbitration
would be needed, and none would be called. It was only in the event
that they should be unable to agree that there would be any occasion
for an Arbitration at all, and that is the contingency, and that alone is
the contingency, spec^ified in the Tiinth Article of this Treaty,

The President. — Do you mean that this is the same contingency
which is specified in Article VII, — that both contingencies are the same
contingency?

Mr. Carter. — The Avord '' contingency " does not occur, may it please
the learned Arbitrator, in Article VII of the Treaty.

124 ARGUMENTS ON PRELIMINARY MOTIONS.

The President. — The word does not occur, but the meaning does.

Mr. Carter. — No. lUit I have dealt with the uieaninj;' there. I am
now deahng with the argument of my learned Iriends upon the other
side based upon this word ''contingency", and what that means, and I
think I have now succeeded in showing, at all events to my own satis-
faction, and as far as I can, to the satisfaction of the learned Arbitra-
tors, that the "contingency" mentioned in Article IX of the Treaty is
the contingency that there should be any Arbitration at all.

I must make one moditication of that: — "the contingency that there
should be any Arbitration at all " upon the subject of Eights or Regu-
lations, In the course of the negotiation, Great Britain had made
claims for damages, and provisions were inserted in the Treaty on that
score, and it might still be necessary, as those were in reference to past
occurrences, and would not be settled by the establishment of Regula-
tions for the future — it might still be necessary for the Arbitration to
discharge its functions and to be called together upon the question of
damages, but upon that question alone.

Now then, to sum up a little the substance of this debate — what has
been the contention of Great Britain on this subject? At the start,
they began with the interpretation that all evidence in respect of Reg-
ulations, at least, and, as they say, all evidence in relation to seal life,
was not admissible until after a decision by the A-rbitrators adverse to
the claims of the United States in respect to the questions of exclusive
jurisdiction, and that it was not until that decision was made that any
evidence would be competent or admissible in relation to seal lite, and
that, therefore, any submission of evidence in relation to seal life in the
Case by either party was irregular, not allowed by the Treaty — a thing
which they protested against, and reserved their right to move the
Tribunal to strike out.

That was their attitude, and the explanatory note of Lord Rosebery
in reference to that was in answer to the suggestions from the Govern-
ment of the United States that this provided no method by which
either party could answer tlie allegations of the other in respect to the
most important part of the controversy. His answer to that was:
"That is a method of procedure "; and the intimation was that it was
for the Tribunal itself to regulate it; so that after it had come to its
decision upon these questions of exclusive jurisdiction and found it
necessary to enquire into the question of concurrent regulations, it
would then establish some system of procedure by which the ])arties
would be apprised of the evidence relied upon by each other, and be
able to meet it, making necessary a new hearing and a new decision.
That was their first position. The main features of it are still asserted
by Counsel on the other side; but the absurdity of supposing that
there are to be two hearings, two submissions of evidence, two decisions,
and two awards, has struck my learned friend. Sir Charles Russell so
forcibly that he has been obliged to retire from that, and he says, if I
correctly understood him in tlie course of his argument, that there is
to be no such thing — there is not to be a decisio}i^ but he insists that
the evidence still is not admissible, until the Tribunal has determined
that it must enter upon the question of regulations, but that determi-
nation it is not necessary to evidence by a judgment, or by a decision,
but by an intimation — that was the word, I think, — by an " intimation".

Sir Charles Russell. — An intimation of a determination.

Mr. Carter. — Yes, by "an intimation of a determiimtion" an inti-
mation that it had reached such and such a determination.

Now you will have observed all through this debate on the part of
the Counsel for Great Britain that there is an assumption that this

ARGUMENTS ON PRELIMINARY MOTIONS. 125

evidence in relation to seal life — this vitally imj)oitant part of tlie
evidence, and only disputable part — has a bearing only upon the ques-
tion of regulations, or mainly that, thus defending the cour.se pursued
by Her jMajesty's Government in not incorporating any part of that
evidence into the original Case.

For you will perceive, that if evidence bearing upon the subject of
seal life is competent and relevant upon the question of property, why,
then, consistently with their own interpretation of the Treaty, they
were* bound to incorporate it into their original (Jase. For the question
of property is one of the live questions Avhich it is made necessary by
the provisions of the Treaty that a categorical response should be
given by the Arbitrators. The question of property is among them.

The question of Kegulations is put by itself; but the question of
property is among the tirst five, and if this evidence in relation to seal
life is competent and relevant upon the question of property, why they
should have juit it into the original Case and not have reserved it, as
they did reserve it, until their Counter Case. Is evidence as to the
nature and habits of the fur seals not competent upon the question of
property? How can that idea^ be entertained for a momenta How can
the question of property be otherwise determined f Su])pose both par-
ties had acted upon the view suggested by Sir Charles Eussell and
maintained constantly by the Government of Great Britain — I will not
say maintained constantly, for they, with great respect, are incon-
sistent upon that point, as I shall presently show — but urgently insisted
upon at times, namely, that the testimony in relation to seal life is not
competent upon the question of j)ro])erty. Sui)pose both sides had
proceeded upon that view, and scrupulously omitted from their several
Cases any matter or evidence relating to seal life, and the Arbitration
had gone on with the Cases prepared in that manner, this Tribunal
would then be called upon to determine the question of property with-
out any evidence before it except the fact that seals were seals — that
is where we would have been. Now I resi)ectfully submit to the
Tribumil that that notion that evidence in relation to seal life is not
competent upon the question of property is — I do not wish to use the
word in any disrespectful sense — but it is preposterous. ISuch evidence
is directly relevant to the question of property — principally relevant to
the question of property, and it is the only evidence upon which the
question of property can be xu'operly decided.

Let me say in the next i)lace, that this notion that they have brought
forward for the purpose of defending their conduct in the preparation
of their Case and Counter Case derives no countenance from the
diplomatic communications between the parties, or from theprovisions
of the Treaty itself and those other instruments which are collateral
to the Treaty. Let me call your Honors' attention to the Modus vivcndi
of 1891. It is contained in Volume I of the Appendix to the United
States Case, page 317; that part of it to which 1 invoke especial
attention is the fourth Article.

The President.— May I ask what is the date of that Modus vivendi?

Mr. Carter.— It is June the 15th, 1891.

The President. — Quite concurrently with the nomination of the
Joint Commission, — quite at the same time"?

Mr. Carter. — Yes, Sir.

The President. — They concurred together?

Mr. Carter. — Certainly, Sir.

The President. — They concurred in time with the nomination of
the Joint Commission.

126 ARGUMENTS ON PRELIMINARY MOTIONS.

Mr. Carter. — This Article IV, which I am going to read to you, pro-
vides for the investigation which those Commissioners made. — '' (4) In
order to facilitate such proper inquiries as Her Majesty's Government
may desire to make, with a view to tlie presentation of the case of that
Government before Arbitrators, and in expectation that an agreement
for arbitration may be arrived at, it is agreed that suitable persons
designated by Great Britain will be permitted at any time, upon appli-
cation, to visit or to remain upon the seal islands during the present
sealing season for that purpose." Under the provisions of that Article
Her Majesty's Government appointed these two very Commissioners to
make those investigations, and api)ointed no other people; and it was
for the purpose of enabling them to present their Case i)roperly that
this provision was to be inserted; so that the notion that knowledge
in respect to the nature and habits of seals and of seal life had no
place in the presentation of the Case is a totally erroneous one, con-
tradicted by both parties by the Agreement into which they entered.

And Sir Julian Panncefote writes to Mr. Wharton on the 21st of
June:

Sir: I have the honor to inform yon that I have received a communication from
Her Majesty's Principal Secretary of State for Foreign AfTairs to tlie effect tlmt tlie
Queen has heen graciously pleased to ap):oint Sir (George Baden-Powell, M. P., and
Prof. Dawson Commissioners to proceed to the Pribilof Isliiiuls for the purpose of
examining into the fur-seal fishery in Behring sea. In accordance with the instruc-
tions of the Marquis of Salishury, I have the honor to request that permission may
be granted to these gentlemen to visit and remain on those islands during the cur-
rent fishery season.

And in this communication of Mr. Wharton, then in charge of the
Department of State of the United States, to Sir Julian Pauncefote he
said — this is dated June 6, 1891 :

But in view of the fact that the evidence which the respective Governments will
present to the Arhitrators (if that happy solution of the pending difficulties shall
be attained,) must be collected during the present season, and as the definite agree-
ment for arbitration cannot be concluded contemporaneously with this agreement,
the President directs me to say that he is quite willing to agree that Her Majesty's
Government may send to the Seal Islands, with a view of collecting the facts that
may be involved in an arbitration, and especially facts relating to seal life and the
results of the methods which have been pursued in the killing of seals, a suitable
person or persons to make the necessary ol)servations. The present and the com-
parative conditions of the rookeries may become an important consideration before
Arbitrators in a certain event, and the President would not ask that the evidence
upon this subject should be wholly from one side.

I am upon the point which our friends on the other side have insisted
upon before your Honors, that this evidence in relation to the nature
and habits of the seals is pertinent only to tlie question of regulations.
I have to say that that is inconsistent with their own views expressed
elsewhere; and not only expressed but acted upon,

I now call the attention of the learned Arbitrators to Chap. 7 of the
British (Counter Case, which is to be found upon page 100. They are
there dealing with the question of property, and that dealing with the
question of property is extended from Chap. 7, p. 100, to Chap. 8, p.
154. There are fifty-four pages devoted to the question of .property in
fur-seals and to the position taken by the United States in that behalf,
and the position taken by Great Britain in that behalf.

Sir Charles Russell. — Will you kindly read the heading of the
chapter?

Mr. Carter. — Yes :

Consideration of allegations of fact put forward by the United States in connec-
tion with point 5 of Article Li.

ARGUMENTS ON PRELIMINARY MOTIONS. 127

Aucl point Five of article 6 I will uow read:

Has the United States any right, and if so what right, of protection or property
in the fur-seals frt .qneiiting the islands of the United States in Behring Sea, when
sucli seals are found outside the ordinary three-mile limit?

That is tlie Article which presents the question of property, and the
title to this chapter wliich my learned friend desires me to read is,
"Consideration of allegations of fact i>ut forward by tlie United States
in connection with point 5 of article 6." There is a devotion of 100
pages to the consideration of testimony in relation to the natnre and
habits of seals and the characteristics of seal life as bearing upon the
question of property — all connected together in an argumentative chain
of reasoning, designed to show that upon those facts the United States
has no property in them. I mean to submit upon this, may it please
the learned Arbitrators, that the assertion of the learned counsel upon
the otiier side that the questions relating- to seal life are not applicable
to any of the first five questions stated, and tlierefore should not go
into the Case, are contradicted by their own action.

Mr. Justice Haklan. — Mr. Carter, I find on looking at the proof of
the debate when Sir Cliarles Eussell was upon his feet, assuming this
to be correct, I put to him the question — he was discussing the origin
or basis of the right of j)roperty :

Whether it depends on municipal or international law, how far does the question
of the right of property depend njion the facts of seal life?

The answer was:

I have said that in my judgment, so far as the facts of seal life are material for
the (juestion of law as to property in seals, they are not in dispute.

Then I put the questions in a different form :

When we come to determine the question if the United States has any right or
property in these seals or in the herd, do we consider', and ought we to take into
consideration, the facts in seal life?

The answer reported is:

Certainly. So far as they are material, certainly.

Sir Charles Russell. — So far as they are material, certainly.

Mr. Carter. — Yes, Sir; and yet the contention on the part of the
learned counsel has been, and tlie contention throughout this diplo-
matic correspondence has been — and it is upon that contention that
they defend their withholding of evidence in relation to seal life — that
it does not bear upon the question of property and does bear upon the
question of regulations.

The President. — Is there no evidence adduced by Great Britain in
support of these 100 pages of the Counter Case which you have just
alluded to.

Mr. Carter. — None in their case.

The President. — Put in the Counter Case.

Mr. Carter — Oh, volumes of it, and for the first time; and that is
what we complain of. If evidence upon the question of seal life bore
upon the question of property, that was one of the five questions upon
which the arbitrators were called upon to make explicit answers; and
everything beaiing upon those questions is by the concession of all
parties to be incorporated into the original Case, and yet not one word
in respect to seal life was put by them in their original Case.

That, the learned President will remember, was the subject of our
complaint; and the answer to our complaint was, "That evidence is not
relevant here; it bears only upon the question of regulations, and the

128 ARGUMENTS ON PRELIMINARY MOTIONS.

time for its submission does not arise until the Arbitrators have made
their decision upon the first five questions;" and therefore the Arbi-
trators nnist make their decision witliout the benefit of sucli evidence.
They ])rotested that it ouglit not to be put into the original Case; that
the action of the United States Government in incorporating such evi-
dence in tlieir original Case was irregular, improper, and not allowed
by the Treaty. They reserve the right to move this Tribunal to strike
it out. Tliey have committed themselves sqnarely to it; and yet what
I have the honor now to say is, that by their conduct they have refuted
their own inter})rotation, and in addition to that, bearing in mind what
was communicated tome by Mr. Arbitrator Harlan, it is expressly said
by them that the facts of seal life are relevant to the question.

I may also say that in their Counter Case, dealing with the facts of
seal life, and arguing the question of property, they use over and over
again the re])ort of their Commissioners, which they refused at first to
incorporate into their original Case, but which they afterwards, as the
Arbitrators will remember, fnrnished to us at our request upon the under-
standing that it should be treated as a part of it.

The President. — Had not the British Govenmient agreed to incor-
porate at your demand the report of their Commissioners into the orig-
inal Case before the Counter Case was delivered?

Mr. Carter. — They had. They delivered their original Commission-
ers' rei)ort, and agreed that it should be treated as a part of their orig-
inal Case. We accepted it on that understanding, but with the under-
standing also that it sliould be all the evidence upon which they would
rely as to the questions respecting the nature and habits of seals, the
question of property and the question of Eegulations.

Sir Charles Kussell. — Oh no!

The President. — Do you not think it was legal for them to use the
evidence of the report in the Counter Case, since the Counter Case
came after that admission of the report?

Mr. Carter. — Perfectly so.

The President. — I mean do you object to that"? That is what I
enquire about.

Mr. Carter. — Not at all. I am not disputing the propriety of that.
It was entirely proper. I only meant to say that their Uvse of the original
report in their Counter Case while arguing the question of property
shows that that original report is relevant to the question of proj)erty.
If relevant to the question of property, it ought to have been put into
their original Case.

In their argument they follow the same method. On i)age 27 they
have a part two, and that is entitled "Argument addressed to the fifth
question for decision under article six of the Treaty of Arbitration,
namely: "Has the United States any right of protection or property in
the fur-seals". And they go on in that argument, and make the basis
of it, their understanding of the nature of the habits of the seal. That
argument goes through many pages.

This is all I have to say, and certainly it is not necessary that I should
say anything further, in order to show that the contention made in argu-
ment, made in diplomatic correspondence on the part of the British
Government, that evidence touching the nature and habits of fur-seals
is not relevant upon the question of property is not only — begging the
pardon of my learned friends — preposterous upon its face, but has been
refuted by their own action in a great variety of forms.

N(jw, why did they y)ut evidence in relation to the nature and habits
of seals into their Counter Case? Why did they put it there? They

ARGUMENTS ON PRELIMINARY MOTIONS. 129

profess to say that it does not apply to tlie five questions stated, that
it is relevant only to tbe question of regulations; that the consideration
of the question of regulations is not yet in order, that it will not be in
order until the arbitrators have made a decision adverse to the United
States — that then, and then for the first time, will it be relevant; and
yet, notwithstanding that view, they have crammed their Counter Case
with it to repletion. Why did they do that? What is their own excuse
for that course so inconsistent with their own view? They said they
did it out of deference to the views of the United States. Out of defer-
ence to the United States! That is to say — for such is the distinct
implication — the United States desired it. That is the implication ; that
is the inference — that the United States Government desired it.

What! The United States Government desire that the British Counsel
should put into their Counter Case what they had left out of their
original Case, and what ought to have been put there? Why, no. The
position of the United States was that anything in reference to the
nature and habits of seals which you have to submit is to be put into
the original Case. If you do not put it into the Case and at the time
when that is submitted, you must never put it in. That is the position
of the United States, was at the first, has always been, and is now ; and
yet they say that out of deference to the views of the United States
they contradicted their own theory and inserted it in the Counter Case !

The insertion of that matter in the Counter Case is the great thing
to which Ave have objected. We object to that, and have objected all
along, on the same grounds upon which we object to the reception of
the present supplementary report of the British Commissioners.

Now then, let me approach the i>o\\it now before this Tribunal.
What is it? It is whether a certain document that has been placed
before the Tribunal of Arbitration should be retained or should be
returned to those who sent it. That is the question before you. Is
the submission of that paper defensible upon any possible view? On
the view entertained by the United States concerning the interj)reta-
tion of the Treaty, of course it is not ; and I am not going to repeat
my argument upon that x)oint, but to assume that I have sufflcieiitly
established it. On our interpretation it is a wholly inadmissible pro-
ceeding to submit such a paper as that in the manner in which it was
submitted. What is the character of the paper? I don't know. I
have never seen it, and I have no information about it; but I suppose
I may say that it is to be presumed to have a bearing upon the merits
of this controversy. If it has not any bearing upon the merits of this
controversy, why of course it should not be received. It must be pre-
sumed to have a bearing upon the merits of this controversy. The
very fact that it is submitted shows that.

What bearing may it have? It may contain either arguments or
evidence, or, as they euphemistically style it, "trustworthy informa-
tion". If it contains arguments alone, it is improperly submitted.
Learned counsel are to argue the case of the British Government, not
these Commissioners. If it contains evidence bearing upon this con-
troversy, then as I think I have succeeded in showing, it is wholly
inadmissible. I have now to submit to the learned Arbitrators that it
is inadmissible uj)on their view of the Treaty — the view of the counsel
of Great Britain.

What is their view of the Treaty as to the time when they are per-
mitted to submit evidence, even supposing that it bears ujion the ques-
tion of regulations only? If it bears upon the question of property,
they must admit that it is admissible and only admissible as a part or
B S, PT XI 9

130 ARGUMENTS ON PRELIMINARY MOTIONS.

tlie oiigiual Case; but assuming for the purpose of argument, that it
bears upon tbe question of regulations only, wben, according to their
theory, is it admissible? It is admissible, according to their theory,
in a certain contingency, and in a certain contingency only; and what
is that? The decision by tlie board of Arbitrators adverse to the
United States upon the question of exclusive jurisdiction. Has that
decision been made? Certainly not. Therefore, upon their theory it
is not competent or admissible here. Let me ask whether it is admissi-
ble on the original theory of the British Government as modified by the
learned Counsel, who has so ably argued this question on their behalf.
How has he modified it? Why, he has said: "Any decision ; I don't
mean a formal decision, I mean an intimation." Has that intimation
been given? No more than the decision.

There is another aspect in which evidence might possibly be admissi-
ble, and that is, if the Arbitrators themselves after they come to the
question of regulations, or when they are considering the questions of
regulations suggest that farther inquiries or further evidence is admis-
sible, then it might come. Have they made any such suggestion?

Mr. Foster. — The provision is: " They may require a written or a
printed statement, or argument, or oral argument by Counsel."

Mr. Carter. — I will read it:

"And the Arbitrators may, if they desire further elucidation with
regard to any point, require a written or printed statement or argument
by Counsel upon it." I stand corrected.

Mr. Phelps. — That is restricted to Counsel.

Mr. Carter. — That is restricted to argument, and does not deal
with evidence. Therefore upon no possible interpretation, not even
their own, is this supplementary Report admissible, and I submit very
respectfully to the learned Arbitrators that it should be promptly
rejected and returned. That is the only just disposition which can be
made of that paper.

I have concluded my argument in respect to that. I desire to make
one or two observations, not by way of argument upon this point,
because I have concluded that, and 1 am not going to attempt to take
it u]) again. My learned friend, Sir Charles Kussell, stated with some
emphasis that while the United States contended that evidence in rela-
tion to the nature and habits of the seals relevant to the question of
property and also relevant to the question of regulations, should be j) re-
sented in the original Cases and presented only there, that we had (uir-
selves acted in contradiction to that view and had incorporated evidence
of that character into our Counter Case contrary to our own views.
He referred in that connection, I believe, to the three reports of Capt.
Hooper and Capt. Coulsou which deal with the condition of seal life in
1892; and to the reports of certain Treasury officers, two or three of
them, also having relation to matters in 1892, 1 believe. I do not know
that he referred to anything else. That is all I remember.

Let me say in reference to the pieces of evidence thus referred to
that they may in part be subject to the criticism which my learned
friend puts upon them. That is, that they so far relate to seal life as to
be germane to the main questions, and therefore properly the subjects
of insertion in the original Case.

Sir Charles Russell. — I would like to interpose here. Sir, in order
to avoid, so far as may be possible, matters that are really not in con-
troversy. I was making no complaint of the insertion of that evidence.
I was pointing to tlie fact that it was evidence which from the nature
of the case we had no opportunity of in any way meeting or replying to.

ARGUMENTS ON PRELIMINARY MOTIONS. 131

I 'svas poiuting oiTt tliat that was a necessary incident, almost indeed a
neces^sary incident, to the proceedings of a Tiibnnal constitnted as
this is; but 1 was making no complaint of its appearing there, in any
sense.

The President. — We perfectly understood you.

Mr. Carter. — Ko comjdaint; but still my learned friend insisted
with great emphasis that the course thus pursued by the United States
was not justified by their interpretation of the Treaty.

Sir Charles Russell. — Oh ! no.

Mr. Carter, — I understood him to say that. If I am mistaken
about that, then I will pass by the observation.

Sir Charles Russell. — It was addressed solely to the argument
of my learned friend, Mr. Phelps, who was complaining of the injustice
of certain evidence being put forward which the other side had not had
an opportunity of answering. My reply was that that was a necessary
incident of this case, that they had included intbeir Counter Case (and
I was not complaining of it or making objection to it,) matter which we
had no opi)ortunity to answer.

Mr. Carter. — Well, I must have a word to say in regard to the
observation just made, that the presentation of evidence without giving
the other party an opportunity to reply to it is a necessary incident of
this controversy. I have a word to say upon that point, if any argu-
ment is made upon that. To a certain extent, and to a very small and
insignificant extent, it is a necessary incident of this controversy; but
in regard to the main and principal features of this controversy, it is
not, 1 maj^ be permitted to say.

In reference to all the main questions in dispute here, if the parties
had fully, fairly, faithfully i^resented the allegations upon which they
relied, as the Treaty designed that they should, in their original Cases,
there would have been full complete and substantial opportunity by
each party to reply. Of course, there is no opportunity here to reply
to replying evidence. The course of pleading must stop somewhere, and
according to the provisions of this Treaty it stops with the Counter
Case. There is no opportunity to reply to that, but the provision of the
Treaty supposed that there would be no new matter inserted in the
Counter Cases; if the provisions of the Treaty were faithfully followed,
there would be no new matter inserted in the Counter Cases, and no
occasion, therefore, to reply.

I do not mean that it is not a necessary incident of that course of pro-
cedure that there might be put into the Counter Case, of one of the par-
ties or of the other, some matter as to which the other side might very
properly desire to add further explanation. That is indeed a necessary
incident, but it is too small and too insignificant for notice or attention,
in view of the tact that the great purpose of reply, the great purpose of
giving each of the parties an opi)ortunity to answer the i^roofs and alle-
gations of the other, is provided for by the Treaty, and that the want
of an opportunity to further rei)]y is not in any material or substantial
sense a necessary incident of the manner in which the controversy is
provided to be conducted by the terms of the Treaty itself.

I wish to say in reference to these further rei)orts of ours, which are
not complained of: we inserted them in the Counter Case? Why? We
could not have inserted them in the original Case. They were investi-
gations in respect to matters which arose after the original Case was
prepared, or while it was being prepared, and therefore could not be
inserted in it. We therefore did not withhold anything. The matter
did not exist untbl after the preparation of the original Case, and there-

132 ARGUMENTS ON PRELIMINARY MOTIONS.

fore conld not have been introdnced into it. Next, we suppose that
nmcli of the matter contained is germane and i)roper to be inserted in
the Counter Case by way of reply to what was contained in the Eeport
of the Commissioners of Great Britain, which was, by agreement, made
part of the original Case of Great Britain, and therefore perfectly regu-
lar in that point of view. So far as there may be anything beyond
that, if there is any objection to it, if it is supj)osed by the other side
that this is matter which ought to have been inserted in the original
Case, and which, had it been inserted in the original Case they should
have had an opportunity to reply to — we do not ask to have it retained;
and ui)on their objection, if they can jioint to any matter distinctly of
that description we are willing to have it stricken out, provided, of
course, the same rule is applied to them in respect to any new matter
submitted by them in their Counter Case.

Mr. Foster. — The matters relate to the conditions of seal life in 1892.

Mr. Carter. — Of course, that is what I have said, that it had refer-
ence to facts occurring while the Case was under prejDaratiou, that is
seal life in 1892.

The President. — You practically make no motion for retiring part
of the evidence brought forward in the British Counter Case.

Mr. Carter. — We do not make any such motion. Yesterday I
endeavored to explain to the learned arbitrators the grounds upon which
we thought it inexpedient to do so. We could make that motion, and as
we conceive, it should be granted and would be granted. But where
sliould we be left? Why, the practical failure of the arbitration almost
might be involved, or we be called upon to go into a contest here with
our adversaries crippled. That is not the kind of controversy in which
lawyers like to engage, even where the crippling comes in consequence
of tlieir own fault and not in consequence of any fault of ours. It is not
a victory won over an adversary who is in that condition that we desire.
It is a settlement of this controversy upon just grounds. It is a settle-
ment of the controversy when the Tribunal has before it all the facts
proper to be looked into for the purposes of a settlement. That is what
we desire; what we regret is, that those facts were not placed before
the Tribunal at the time and in the manner in which it was contem-
plated by the provisions of the Treaty they should have been placed.
That is our grievance — as my learned friend has observed that we seem
to be in search of a grievance. I confess it is a grievance. Must a
party when he it stricken with a pretty severe blow rest quiet under it
and say nothing about it, or else be stigmatized as searching for a
grievance'? We maybe subject to that observation, that criticism; but
it is in our judgment a circumstance far too important to be omitted
from deliberate consideration in the course of the discussions in this
case.

There is one other matter which has been referred to and assump-
tions made in reference to it several times during the course of the
argument, and which, although it is not in any sense material to the
present discussion, I ought perhaps to say a single word in regard to.

Calling the attention of the arbitrators again to the provisions of
article 6, it appears that there are four questions which purport upon
their face to relate in some manner to an asserted power or jurisdiction
of the United States in Behring Sea. There are four of them of that
character. The fifth is:

Has the United States any right, and if so what right, of protection or property
in the fur-seals frequenting the islands of the United States in Behring sea when
such seals are found outside the ordinary three mile limit.

ARGUMENTS ON PRELIMINARY MOTIONS. 133

That fifth question docs not inirj)ort on its face to relate to or involve
any matter of exclusive jurisdiction. It differs from the other question
in that regard. It embraces certainly the property question. Whether
it embraces anything else, or not, is perhaps not entirely clear.

Now let me call your attention to Article VII;

If the determination of the foregoing questions as to the exclusive jurisdiction of
the United States shall leave the subject in such position that the concurrence of
Gi-eat Britain is necessary.

^' The foregoing questions as to the exclusive jurisdiction."

Now, how is that to be interpreted? Is it confined to those four first
questions which purport on their face to relate to exclusive jurisdiction,
or does it include the whole? That is the question, does it include the
whole?

A plausible argument could be made in support of either of those
positions. It might be said that the foregoing questions as to the exclu-
sive jurisdiction of the United States relate to the first four and do not
include the fifth question, that not being a question relating to the exclu-
sive jurisdiction of the United States; and I think upon the other hand
it may be claimed with equal, perhaps greater plausibility, that Article
VII contemplates all five of those questions as relating, in a greater or
less degree, to the exclusive jurisdiction of the United States.

You will observe that it says : "If the determination of the foregoing'
questions as to the exclusive jurisdiction of the United States." That
implies, at least, that they all relate to the exclusive jurisdiction of the
United States.

The Peesident. — You do not mean to say "jurisdiction" is the
same as "rights of sovereignty"?

Mr. Garter. — Well, now, what "jurisdiction" means, who knows?
We shall have something to say about that by and by. That is a word
of very ambiguous import; I shall talk more about this question when
we get to the merits of the case. I do not wish to anticipate the discus-
sion at all here, but only to throw out a suggestion that either of those
two views may be taken; and what favors the second view, in my
judgment, is this consideration: If it were held that the United States
had a perfect property in the fur-seal, even while it was at sea, the
question may be made, indeed it has been made by G-reat Britain,
whether the United States has the right to enforce the protection of that
property on the high seas by the assertion of acts of power; in other
words, whether it has the right to seize and carry in for condemnation
a vessel that is engaged in an invasion of that right? The position is
taken by Great Britain in this controversy that, even if the right of
property were fully established, the power thus to act in the way of
seizing a vessel does not exist; that is to say, that even if the right of
property exists you have no jurisdiction to do that particular thing, the
seizure of a vessel on tlie high seas by way of protecting that property.
■ Therefore this question: "Has the United States any right, and if so
what right, of protection or property in the fur-seals frequenting the
islands of the United States in Behring sea when such seals are found
outside the ordinary three-mile limit," may properly be regarded as a
question of jurisdiction, in tlie vague sense in which "jurisdiction" is
used throughout this Treaty.

Both those interpretations may be, with a good deal of reason, enter-
tained. I have now to suggest, however, that it makes not the slightest
difference which view is taken upon that point, for the same result will
be arrived at in either case. Suppose we take the first view, that it is

134 ARGUMENTS ON PRELIMINARY MOTIONS.

confinftdto the four first questions and does not include the question of
property.

"If the determination of the foregoing questions as to the exclusive
jurisdiction of the United States shall leave the subject in such i)osition
that the concurrence of Great Britain is necessary to the establislunent
of Eegulations for the proper protection and preservation of the fur-seal
in or habitually resorting to the Behriug sea, the Arbitrators shall then
determine what concurrent Regulations outside the jurisdictional limits
of the respective governments are necessary", etc. If we limit that to
the four first questions what would be the grounds of i)roceediiig?

The President. — Do you not think that we might reserve these very
interesting observations for our next sitting!

Mr. Carter. — After the recess?

The President. — Yes, after the recess. It would afford you occasion
for a rest, and I dare say you require a little rest yourself.

(The Tribunal thereupon took a recess for a short time.)

Mr. Carter. — I was speaking, when the Tribunal took its recess, upon
amatter about which there has been some debate, but which is not vital
to the present motion at all, respecting the interpretation which is to be
placed upon the words in the seventh Article of the Treaty, namely:
"The foregoing questions as to the exclusive jurisdiction of the United
, States." I had said that that was susceptible of two interpretations,
one of which would limit these foregoing questions to the first four
stated in Article VI and did not include the property question, and the
other interpretation would include all of them, the property question as
well. I also observed that it did not seem to me that anything of prac-
tical importance depended upon which of those views should be taken
to be the true one, for the result as it seemed to me, would in either
case be the same. It is that which I wish very briefly to show to the
Tribunal — that the resolt would be the same in either case. After the
arguments have been finally concluded, it will be the duty of the Arbi-
trators to proceed according to the first provision of Article VI: "In
deciding the matters submitted to the Arbitrators, it is agreed that the
following five points shall be submitted to them in order that their
award shall embrace a distinct decision upon each of said five points."
Therefore, their first task will be to make their decision on those five
points. Let us assume it to have been made, and that the decision in
respect to the 5th point is that the United States lias the full property
interest in the far seals Avhich it asserts. Let me suppose, for the pur-
pose of argument, that that state of things is found to exist when the
Arbitrators have complied with their duty, and decided the first five
questions. It will then become necessary for them to consider whether
the subject is left "in such position that the concurrence of Great Britain
is necessary to the establishment of Regulations for the proper protec-
tion and preservation of the fur-seal in, or habitually resorting to the
Behring Sea." Suppose they put upon that clause the narrower inter-
l)retation, namely that it includes only the first four questions, and ask
whether the subject is then left "in such position that the concurrence
of Great Britain is necessary". Let me assume that the decision is
adverse to the United States on the four points, and on the fifth point
is fully and completely in favor of the United States. Then the ques-
tion with the Arbitrators is: Does the decision of the Tribunal on the
first four questions leave the subject "in such position that the concur-
rence of Great Britain is necessary to the establishment of Regulations
for the preservation of the fur-seal ". Well, of course, the first four
questions having been decided adversely to the United States, so far,

ARGUMENTS ON PRELIMINARY MOTIONS. 135

at least, the subject is left in a position which requires the concurrence
of Great Britain ; but the decision of the Tribunal in reference to the
5th question is in favor of the United States, awarding to it a full prop-
erty interest. Does that alter the case? Wliat is the effect of that
decision upon the subject? Is the subject then left in sucli a position
that the concurrence of Great Britain is necessary! That will depend
on the opinion of the Arbitrators as to the right which the United
States has to protect an admitted property interest outside of the three-
mile limit. If they should be of the opinion that it follows from the
determination of the property interest in the United States, such as it
claims, that it does have the Vull right of protection, it may then think
that no assistance is necessary for the preservation of fur-seals, by
regulations, and that the concurrence of Great Britain is not necessary,
but that the United States, having the power to prevent pelagic seal-
ing, is fully armed with the right to take whatever measures are neces-
sary for the protection of fur-seals.

Suppose, however, they happen to be of the view, which has been
taken by Great Britain in the course of this controversy at some times —
whether it will be still persisted in argument, I cannot say — namely,
though the United States may have a property interest in the fur-seals,
it cannot seize a vessel outvside the ordinary three-mile limit that is
engaged in pelagic sealing then it would be necessary to have the con-
currence of Great Britain to make etfectual regulations for the pres-
ervation of the fur-seal.

Let me suppose the contrary view, and that the foregoing question
relating to the exclusive jurisdiction of the United States included all
these five questions, the property (piestion, as well, what will be the
course of procedure then? The Arbitrators will make a decision on all
these five questions. Then the question which they will have to con-
sider will be, does the decision which we have made on these five ques-
tions leave the subject in "such position that the concurrence of Great
Britain is necessary for the establishment of regulations to preserve
the fur seals'?" And let it be supposed, again, that the decision is
adverse to the United States on the first four questions and in favour
of the United States on the fifth. Well, they would go through with
precisely the same considerations which I described them as being
obliged to go through with on the supposition that these foregoing
questions, as to jurisdiction, relate only to the first four questions and
do not include the property question. It would be the same thing in
any event, and if we suppose that the decision of the Arbitrators should
be against the United States on the question of jurisdiction, then of
course it would be their view that the concurrence of Great Britain
would be necessary as to regulations to preserve the fur-seal. It,
therefore, seems to me, so far as I can perceive, that no practical
importance of any considerable moment rests upon the question,
whether Ave regard the term "the foregoing questions as to the exclu-
sive jurisdiction of the United States" as embracing the first four ques-
tions mentioned in Article I or embracing the entire five.

That is the explanation I desire to make. — With this I should stop,
and I had said to the Tribunal that I should not again touch the ques-
tion relative to the introduction of the paper which was the subject of
our motion, but I reckoned a little without my host. There is a single
position taken by my learned friend, Sir Charles Eussell, to which I
have not replied, and to which if I should fail to reply it would be per-
haps taken as a concession, and I do not desire that I should be consid-
ered as making any concession on that point. I shall say but a word

136 ARGUMENTS ON PRELIMINARY MOTIONS.

about it. That position is, that tlie submission of the evidence to the
Arbitrators on the question of regulations at least is admissible at any-
time down to the final decision. It is indeed necessary for him to take
that position. For as I have already shown, there is no other ground
iTl)on which this paper is admissible, and it being necessary for him to
take that position he finally does take it, and says he does not with-
draw. I must say one word therefore in reference to it. If that is
true, the paper was admissible on the day when it was delivered. It
has been admissible everyday since then, and will be admissible down
to the last day on which we shall be engaged on the argument of this
question. If it was admissible the day before it was actually delivered,
it was admissible every day before that up to the time when the Coun-
ter Case was delivered and might have been incorporated into the
Counter Case as an appropriate part of that document. In other words,
the position of the learned Counsel is, that this Supplementary Report
of the British Commissioners, and any evidence like it directed to the
same point, is admissible at all times at the pleasure of Her Majesty's
Government with this single exception, that it is not admissible as
part of the original Case and could not have been put in there. That
ground they still assert. In other words, his position is, that the
British Government is able to lay before the Arbitrators on the ques-
tion of regulations such evidence as they please at any time and in any
manner, provided that they do not offer it at a time and in a manner
w hen the United States can reply to it. That is all the observation
that I have to make to this position.

With these observations, and greatly regretting the inordinate
length, for which I may be perhaps in some way responsible, to which
this argument has been protracted, and with many thanks to the Arbi-
trators for the consideration they have extended to me, I take my leave
of this motion.

Sir Charles Russell. — With your permission. Sir, I would claim
leave from the Tribunal, not to go over any point in my original argu-
ment or anything that has been advanced in reply to it, but to refer to
certain matters that have been introduced by my learned friend, Mr.
Carter, and not previously advanced in argument, which I have not had
the opportunity of dealing with. I mean the matter relating to the
diplomatic correspondence which took place in 1890 and the argument
sought to be based on that correspondence. I claim respectfully the
concession from the Tribunal, the o^jportunity in a very few words of
showing that my learned friend has entirely misconceived the purport
of that correspondence.

Mr. Carter. — I must object to this.

Sir Charles Russell. — Well, Sir, perhaps I ought to have said
this in addition, that if the Tribunal decide that that diplomatic cor-
respondence is relevant to the construction of the Treaty which is the
question before the Court, then I claim the right to answer that branch
of the discussion or argument; but, of course, if, as I shall contend, it
is not relevant, and if the Tribunal should have that view, I do not
seek the opportunity of replying. Should it, however, enter into the
minds of any of the Tribunal that it is relevant to the construction of
the Treaty, then I claim to point out the fallacy and the mistake under
which my learned friend labours.

The President. — The diplomatic correspondence has been commu-
nicated to us as part of the information that it is necessary for us to
take into consideration, and, consequently, we cannot help considering
it as relevant, in a certain measure, to the Treaty under which our
powers are defined.

ARGUMENTS ON PRELIMINARY MOTIONS. 137

Mr. Justice Harlan. — Tliat may or may not turn out to be the case.
We may look into it, and may come to the conclusion that it does or
does not interpret the Treaty. Whether that is our conchision, we
cannot know until we confer among ourselves.

Sir Charles Eussell. — Then, if that be so, I should claim to make
au observation limited to that part of the discussion.

The President. — I think the observation of my learned colleague
goes to giving you leave to reply on the special points you hinted at;
but we must preserve also the right of the opposite party to reply to
your observations within the same limits, of course, — I mean, within
the same limits of time and of substance.

Sir Charles Russell. — I will confine myself to five minutes, if my
learned friend, Mr. Pheli)S, will come under the same obligation.

The President. — I do not imagine for a moment that you intend
arguing the case over again; in fact, you specially said that you did
not want to do so and that your observations will be necessarily lim-
ited in their nature and, consequently, necessarily limited in their time
which you will require to explain them. And, therefore, I would ask
the adverse party to keep within the same limits, — within analogous
limits of substance and analogous limits of time if possible.

Mr. Phelps. — I was about to observe, Mr. President, unless the
point is decided, that the whole matter of the diplomatic correspond-
ence of 1890 as affecting this Treaty, was gone into in the opening.
The report of the opening argument which lies before you shows that
it was fully gone into. The correspondence was not perhaps read so
fully as it might have been, and I apologise for not having read it; but
I stated the substance of it, and the point was made very fully, whether,
clearly or not, that the meaning of the word "contingency" as it
occurs in this Treaty was to be found by referring to the previous
negotiations.

yir Charles Russell. — With great deference, this is argument.

Mr. Phelps. — No, I only want to state this, that the point was gone
into fully in the opening, and Mr. Carter, of course, went over the same
ground in reply to the views of the other side. I suppose we are enti-
tled to the opening and the close; I do not wish to be captious cer-
tainly, but I was about to submit that the argument ought to be
regarded as completed. If the Tribunal thinks otherwise, then I shall
claim the right to reply to Sir Charles.

The President. — Yes. I do not think that we can preclude the
English Counsel from making fresh observations, if they think tit, on
what they consider is a new matter. Sir Charles, I think that was the
purport of your demand?

Sir Charles Russell. — Entirely, Sir. I do not propose to refer to
anything except what is strictly and properly to be described as new
matter. I will observe the limits of time, and will undertake to con-
clude in five minutes, if not less.

The President. — We have never found, as yet, that you speak too
long; and I hope you will not have any impression of that sort.

Senator Morgan. — Is it understood that Mr. Phelps is to be limited
to five minutes ?

Lord Hannen. — No; it is only a promise, of course.

The President. — We should be the first victims of anything of that
sort; not only from being deprived of the pleasure that we have from
hearing Counsel, but also of their efforts which enlighten our minds in
this matter.

138 ARGUMENTS ON PRELIMINARY MOTIONS.

Sir Charles Russell. — My friend shall find no excuse for a pro-
tracted reply to me, for I will only make one observation. You are
asked to construe the Treaty, under which you sit, of the 29th February,
1892, and you are asked to construe the terms of that Treaty of 1892
by reference to diplomatic correspondence in 1890, and the suggestion
based on the diplomatic correspondence of 1890 is that there was then
a contemplation of a submission of questions to Commissioners, and a
contemplation that if the Report of those Commissioners was made in
a certain direction there would be an acceptance of the Report of those
Commissioners, and no need for Arbitration at all. My answer to that
is two-fold : first, that the negotiations referred to in the communication
of Sir Julian Pauucefote had relation solely to the question of Regnla-
tions, and had no relation to the question of damage claimed by Great
Britain, for the invasion of the rights of its national ships; next, that
that attempted Convention was one as to which it was supposed Russia
might be induced to become a party, and Russia had no concern with
the question in dispute between the United States and Great Britain at
all, in relation to questions of right and of damage arising out of the
seizure of the British ships; and, lastly and conclusively, at the same
time, overlapping the same dates, there is, if you read tlie correspond-
ence, evidence that the parties were then discussing the question of
Arbitration which should deal with the question of right, and, incidental
to the question of right, with the claims of the British Government to
compensation in damages. Now Sir, I have been only a minute and a
half.

Mr. Phelps. — It does not appear to me. Sir, that my learned friend
quite comprehends, with all his acuteness of comprehension, the use
that we make of this previous correspondence. It has nothing what-
ever to do with the question of damages between these Governments.
It has nothing whatever to do with the concurrence of Russia. We
resort to it only to explain an ambiguity in oiie of the terms of this
Treaty, that is to say, to find out what this word " Contingency" refers
to. Does it refer to the contingency that this Tribunal shall decide
the first five questions in favor of Great Britain, or does it refer to the
Contingency that formerly existed Avhether the Tribunal would ever
sit at all?

Now it is urged in support of the admissibility of this evidence that
the Treaty provides that the evidence is only to be submitted in the
contingency of your decision in favour of Great Britain upon the other
points. We say that when you go back to the former negotiations and
correspondence you will see how that term " Contingency" got into this
Treaty, and therefore that it has no such meaning — that it was imi)orted
into the Treaty from language employed when there was a contingency,
as originally contemplated, whether there should be any Arbitration at
all. If when the Treaty was first proposed these Commissioners had
agreed upon a satisfactory code of Regulations which the Governments
could have adopted, then there never would have been any Arbitration
but it was contemplated that if they did not agree, or if agreeing the
two Governments should not agree to adopt their conclusion, then there
should be an Arbitration. There was a then existing Contingency, and
that is the Contingency that has found its way into this Treaty, and has
caused the word to be used in this connection. One construction, if
adopted, would make the Treaty provide for the submission of evidence
on all points in the Cases and Counter Cases, so that it could be answered
on the other side. The construction for which my learned friend con-
tends, results in the contrary, that is to say that evidence may be
admitted that we cannot rej)ly to, and that is the subject of this debate.

ARGUMENTS ON PRELIMINARY MOTIONS. 139

The President — Mr. Phelps, is it within your Iciiowledge (as Sir
Charles Russell has just alluded to it) that it was in the view of both
Governments to have at any rate an Arbitration upon the legal points
if not upon the Regulations'?

Mr. Phelps. — I think not.

The President. — That is a matter of fact upon which I ask you for
information.

Mr. Phelps. — ^1 think no Arbitration was originally contemplated
on any of these questions of right for this obvious reason. The nego-
tiations in 1887 and 1888 had reference exclusively to the protection of
the seal. Only when these failed were the claims of right brought
forward. If these had not failed it could have been of no possible
importance to the two nations to discuss these claims or to have them,
decided.

Sir Charles Russell. — How is the question of damage to be
ascertained?

Mr. Phelps. — I will allude to that in a moment. An Arbitration is
as entirely unimportant unless it became necessary for the protection of
the seal. If the two Governments had come together, and had adopted
a system of Regulations which both regarded as satisfactory and suffi-
cient, then it would be idle farther to debate whether the United States
Government had a right of property in the seals which it would become
unnecessary to enforce. And it would be idle to discuss whether they
had derived from Russia certain special jurisdiction to these water
rights because they did not need them for any other purpose. And as
to any question of damages which had then arisen, if the main subject
of the controversy, the protection of the seals, had been disposed of, it
is not conceivable that the comparatively small amount in dispute would
have given the Government any concern. They would have agreed
about that in a moment, if they had agreed about the rest. As you
will perceive, and as you will perceive still more clearly when we come
to argue the merits of the case, this discussion in 1887 began by a pro-
posal on the part of the United States.

Sir Charles Russell. — This is rather going beyond the point I
think.

Mr. Phelps. — I am answering only the President's question about a
proposal for a convention that would i^rovide for the jjrotection of the
Seal; it comprehended nothing else, and, as we shall contend, that
was acceded to on the part of Great Britain, and Regulations were
prepared and provisionally agreed upon, and then the objection of
Canada was interposed and that fell to the ground. In the whole
course of that you will see that no question of damages was raised.

Sir Charles Russell. — Oh! really, Mr. Phelps; I must distinctly
dissent from that.

Mr. Phelps. — I am speaking of what I personally know.

Sir Charles Russell. — Then, Mr. President, I challenge my
learned friend, Mr Pheljis, to refer to any document in which Great
Britain ever receded from the position of claiming compensation for
what she alleged to be illegal seizures, or any paper in which the
United States said they M-ere, if Regulations were agreed to, ready to
pay compensation in respect of those illegal seizures.

The President. — That is not quite the purport of what Mr. Phelps
said.

Mr. Phelps. — No, Sir, it is not. I said that when, under the instruc-
tions of my Government, I introduced this subject in 1887, the sole
proposition made on the part of the United States was for a Conven-

140 ARGUMENTS ON PRELIMINARY MOTIONS.

tion that sliould save these animals from extermination; and, as we
claim to have proved in our Case, that proposition was at once acceded
to by Great Britain, — a code or a proposed code from the United States
was invited, and it was furnished and was provisionally agreed upon,
and only the objections of Canada prevented its being carried into
effect. And what I said was, not that Great Britain then receded from
any claims for seizure, — hardly any, if any, had then taken place.

Sir Charles Kitssell. — Oh ! yes.

Mr. Phelps. — Well, there may have been, and I will not say there
was not.

Sir Charles Russell. — 8 or 9.

Mr. Phelps. — What I was saying was not that Great Britain receded
from any such claim or that the United States acceded to it; but that
nothing was said in regard to it on either side between the Govern-
ments in the whole course of this negotiation. When the Arbitration
came to be agreed upon, then the question of damages was imported
into the Case. All that is foreign to the point now before us, which is
what is the meaning of the word "Contingency" as affecting the time
when the evidence is to be taken, the time when the question is to be
heard, and on what evidence it is to be heard.

The President. — Sir Charles, I think it is not proper to argue just
now upon the Regulations themselves, or as to either the origin or the
purport of tlie first draft; but I will merely ask you to be so kind as to
state on what authority is founded the assertion that you just made
that the Governments had contemplated the institution for an Arbitra-
tion on the legal points as separate from the Regulations'?

Sir Charles Russell. — Certainly, Sir; I will give you the dates.
The draft of the proposed Convention is the 29th of April, 1890. I
refer you to page 461 of the third volume of the Appendix to the
British Case.

The President. — Our documents have not the same paging as yours
have.

Sir Charles Russell. — I think the first part is exactly the same.
This, you see, Sir, is within less than a fortnight of the date.

The President. — Which date?

Sir Charles Russell. — The 11th of May, 1890. You will find it is
number 334, Sir Julian Pauncefote to the Marquis of Salisbury — "As
to compensation for damages referred to in your Lordship's telegram
of the 9th instant," — that brings it still closer to the 30th, — "I have
prepared, after discussion with Mr. Tupper, a draft Arbitration Agree-
ment on the basis of your Lordship's instructions'?" The last line of
that document also I refer to. It is, "Proposal for Arbitrators and
Umpire will be agreed to by Mr. Blaine."

The President. — Tbis draft Arbitration Agreement has not been
produced'?

Sir Charles Russell. — No, Sir.

The President. — We have not got it?

Sir Charles Russell. — No, Sir; but what I am at present, of
course, referring to is to shew that my friend's position, that the pro-
posed Regulations, to which it was hoped Russia would be a party,
(lid not displace the claim for damages and did not displace the claims
of right upon which the right to damages depended, and that there
w^as, contemporaneously with the consideration of these Regulations,
that claim for damages and a proposal to arbitrate in reference to it.
That is shewn by the telegram of the 11th of May, which I have read.
If you will then, Sir, go to the document of the 22nd of May, a long

ARGUMENTS ON PRELIMINARY MOTIONS. 141

letter on page 462, you will find a long" despatcli from Lord Salisbury
to Sir Julian Pauucefote arguing out the question of right and the
illegality of the seizure of the British vessels. That, Sir, is the 22iid
of May, 1890. Will you then, Sir, go on to page 481 f

The President. — Is there any mention of Arbitration in this
despatch.

Sir Charles Russell. — In this particular letter — IS'o. It was com-
bating the argument of Mr. Blaine affirming that the United States
were justilied m doing what they had done. If you will then, Sir, go on
to page 481 of the same volume.

The President. — That may be called argument on the legal point.

Sir Charles Russell. — Yes, on the legal points strictly. Sir. On
page 481, at the top, you will see the document No. 3(30. Now, Sir, at
this time (I have not troubled you with the intermediate correspond-
ence) they were getting closer upon the point of Arbitration agreement
as to right, and as to damages, and they were also getting closer to
Arbitration agreement upon the point of Regulations; and the question
arose what was to be done, as the sealing season was beginning about
June — what was to be done to prevent injury to the sealing (so called)
"industry" at that time, and in answer to a demand from the United
States that something should be done in the interim. Lord Salisbury
was requested, having stated that he had no legal authority, and the
English Executive no legal authority except under statute law, to pro-
hibit acts by their nationals, — he was requested to give some public
notification which might have, although not legally binding, some
operation on the action, and control the action, of Canadian sealers.
Accordingly he telegraphs to Sir Julian Pauncefote on the 12th of
June : — " Referring to my previous telegram of today's date, if we could
come to terms on this proposal he would suggest some such kind of
proclamation as the following: — Whereas the United States and Her
Majesty's Government have agreed to refer to Arbitration the legality
of the United States in nmking certain captures of British vessels in
the Behring Sea, and whereas the United States have engaged if the
award should be adverse to them to pay compensation not only for that
interference, but for any loss arising from abstention from sealing con-
sequent on this Proclamation, captains are hereby requested not to seal
in Behring Sea during the present season."

Mr. Phelps.— Was that the season of 1890 or of 1891?

Sir Charles Russell. — 1890. On the 3rd of June Sir Julian
Pauncefote writes this. It is the next document.

" I have the honor to inform your Lordship that since the recei])t of
Mr. Blaine's note of the 2