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 



