ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 185 



ITow does that operate on tlie measure of confidence wliich this Tri- 

 bunal should ])lace in their conclusions? It is entirely destructive of it. 

 That is the simple result. It is destructive, except to a very limited 

 extent. Where these gentlemen speak and testify as to facts which 

 they say fell under their personal observation, they are to be treated as 

 witnesses to those facts of the most unimpeachable character, but, 

 nevertheless, witnesses testifying under a stiong bias. Where, on the 

 other hand, they proceed to give us their opmions as to what the facts 

 are, such ()i)inions are to be discarded altogetlier as being the oi)inion8 

 of, not impartial, but of partisan observers. They are like the opinions 

 of counsel, and they differ in no resi)ect from them. 



That, 1 venture to say, was an entirely erroneous construction of their 

 duties as nmrked out by the treaty. The conception of the treaty was 

 that the opinions of these genllemen as to facts, should have the high- 

 est value and should j)rove the existence of the facts themselves quite 

 indei)endciit]y of the questitm as to whether they had actually observed 

 the facts themselves. What the two Governments wanted to know was 

 what the facts were. They sent these Commissioners there to inquire what 

 the facts were. Of course they could not ascertain them all, or but a very 

 small part of them, by personal observation. They were sent, to make 

 inquiries, and to communicate to the two Governments concerned the 

 results of their inquiries upon questions of fact, and, therefore, their 

 opinions were designed to be — and, if they acted in accordance with this 

 conception of their functions, would justly be — good evidenceof the facts. 

 They were to innke joint inquiries too; but I would not draw a very 

 close line between the methods by which they gained their information, 

 whether by joint, or by separate inquiry. 



If tliey had the proi)er concei)tion of their functions, their opinions, 

 drawn from the best sources which were oi)en to them, as to tlie facts 

 and as to the measures necessary for the preservation of the fur-seal, 

 would be regarded as evidence, and evidence of the highest character} 

 but it all depends upon the question whether they were acting impar- 

 tially, and whether they were acting in accordance with that couception 

 of tlieir duties under which they were appointed. 



Tiie President. In point of fact they made separate observations, 

 did they not? 



Mr. Carter. Oh yes; they did make separate observations. Of 

 course the general intent of the treaty undoubtedly was that these 

 observations were to be joint. If both sets of Commissioners had acted 

 in accordance with that conce])tion of tlieir duties which is marked out 

 in the treaty, 1 do not think any serious ditt'eiences wouhl have arisen 

 between them u])()n facts which they did not jointly investigate. 



With these observations concerning the relative weight which is to 

 be assigned to the reports of the Commissioners, I proceed to state the 

 facts in reference to the nature and habits of the seals; and for that 

 ])urpose I shall employ the report of the American Commissioners: for 

 it states them wi h the greatest precision, with the greatest apparent 

 impartiality; and 1 think it will be found that that statement of facts 

 thus made by them is abundantly established by the testimony in the 

 Case. 



The President. Do you intend to make your observations in regard 

 to the ])arts in which both sets of Commissioners were agreed, or do you 

 intend to make them merely as to the American observations? 



Mr. Carter. I now take the Ameiican observations — the report of 

 the American Commissioners as to the nature and habits of the fur-seal 

 as showing what the fact is. 



