ARGUMENTS ON PRELIMINARY MOTIONS. 3 23 



wln'ch I am lioiiiji' immediately to call the attention of the learnerl Avbi- 

 trators to will throw light upon that i)oint, if they will allow me to i)ro- 

 ceed. — I am informed by Mr. Foster that they had, at the time that 

 the Treaty was actually ratified, completed their labors. 



j\Ir. Foster. — That is, labors of investigation in the field. 



Senator Morgan. — 1 beg leave to say that it came to my attention 

 personally, as a member ot the Senate of the United States, that the 

 Commissioners had been investigating the subject before tlie Treaty 

 was actually signed; but now, whether that appears upon the Cases 

 anywhere, or not, I do not know. 



Mr. Carter. — Well, I am going to show it, if the learned Arbitrator 

 will allow me. What lias been said shows, and I suppose that I may 

 appeal to the diplomatic knowledge of the President to the effect that 

 agreements between two Governments, which it is contemplated will be 

 eventually put in the form of a Treaty and regularly ratified, and which 

 agreements can have no vital force until they are so incori)orated in a 

 Treaty, are, nevertheless, in many cases nmde long before the Treaty, 

 and acted upon long before the Treaty, it being supi)osed by both 

 parties that they have come to such a conclusion ui)on all the details 

 that there will be no difficulty in ])rocuring the settlement of the Treaty 

 and its ratificntion. That took place here. This Treaty is dated on the 

 2yth February, 1802, and so far as an actual binding obligation, evi- 

 denced by a forjnal Treaty, goes for the appointment of these Commis- 

 sioners, none existed until February, 1892, and yet you find that on the 

 24th June, 1891, the Marquis of Salisbury appointed Sir George Baden- 

 Powell and Dr. Dawson Her Majesty's Commissioners, to proceed to 

 Behring Sea and make these proposed investigations, and they went 

 immediately thereafter and engaged in the work, and an actual com- 

 mission was issued to them, as you will observe. 



Senator Morgan. — I wish to en(]uire, Mr. Carter, if you will allow 

 me, whether their lleport which is embraced in the British Case was 

 based upon that investigation? 



Mr. Carter. — It was. That very Keport is the one based u])ou that 

 investigation, — having no other foundation. You will see all this from 

 the preliminary pages of the British Keport itself. It begins by instruc- 

 tions to the British Commissioners, from the Marquis of Salisbury, and 

 they are dated at the Foreign Office, June 21th, 1891, and on the sixth 

 of these preliminary i)ages is the actual Commission issued to them as 

 Commissioners; and that is dated the 22d June, 1891, nearly a year 

 before the ratification of the Treaty. 



Why was all this? It was for the purpose of enabling those Com- 

 missioners to make their investigation and make their Joint reports, and 

 give the two Governments an o])portuuity of coming to an agreement 

 by convention before it would be necessary to take any steps to call 

 Arbitrators together. If, when that Keport was made, the two Govern- 

 ments found themselves able to come to an agreement respecting the 

 measures necessary for the preservation of fur seals, no Arbitration 

 would be needed, and none would be called. It was only in the event 

 that they should be unable to agree that there would be any occasion 

 for an Arbitration at all, and that is the contingency, and that alone is 

 the contingency, spec^ified in the Tiinth Article of this Treaty, 



The President. — Do you mean that this is the same contingency 

 which is specified in Article VII, — that both contingencies are the same 

 contingency? 



Mr. Carter. — The Avord '' contingency " does not occur, may it please 

 the learned Arbitrator, in Article VII of the Treaty. 



