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' 



