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 



