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 



