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. 



