144 DIPLOMATIC CORRESPONDENCE. 



Government of the TJuited States has entire confidence in its ability to 

 maintain its position in the controversy submitted to the Tribunal of 

 Arbitration; but to this end it must be afforded the benefit of those 

 substantial safeguards against the introduction of error which the 

 judicial systems of all nations so carefully secure and which were de- 

 signed to be secured by the provisions of the Treaty. In the absence 

 of such safeguards no party to a judicial proceeding can be confident 

 of the protection of his rights; indeed, a trial of a question of right 

 when one party has no opportunity of meeting aud answering the alle- 

 gations and evidence of the other does not deserve the name of a judicial 

 proceeding. 



I have the honor to be, with high consideration, your obedient 

 servant, 



John W. Foster. 



Lord Rosebery to Mr. Herbert. 



(Handed to Mr, Adee by Mr. Herbert, October 25,. 1892.) 



(No. 234.) 



Confidential.] Foreign Office, October 13, 1892. 



Sir : I have received your dispatch, No. 270, of the 28th ultimo, inclos- 

 ing a copy of the note addressed to you by the United States' Secretary 

 of State on the 27th September last respecting the Behring Sea Arbi- 

 tration. 



Its contents, the general purport of which you had previously con- 

 veyed to me by telegraph, have received the attentive consideration of 

 Her Majesty's Government, and it appears to them to be necessary to 

 examine its various contentions in some detail. 



Mr. Foster states : — 



(1) That the President "has observed with surprise and extreme re- 

 gret that the British Case contains no evidence whatever touching the 

 principal facts in dispute upon which the Tribunal of Arbitration must 

 in any event largely, and in one event entirely, depend. No proof is 

 presented upon the question submitted by the Treaty concerning the 

 right of property or property interest asserted by the United States in 

 the seals inhabiting the Pribilof Islands in Behring Sea, or upon the 

 question, also submitted to the Tribunal of Arbitration, concerning the 

 concurrent regulations which might be necessary in a certain contin- 

 gency specified in the Treaty." 



(2) Mr. Foster goes on to affirm that the Treaty provides for the sub- 

 mission of evidence only through the Cases and Counter Cases therein 

 mentioned, and he infers that the view taken by the British Agent 

 must be "that he may incorporate such proof and evidence in the 

 Counter Case to be prepared by him, leaving the United States without 

 any means of contradicting, limiting, or qualifying them, however open 

 they may be to contradiction, limitation, or qualification." 



The Government of Her Britannic Majesty can not admit that there 

 is any foundation for these complaints, which seem to be based upon a 

 construction of the Treaty which, in their belief and in the opinion of 

 their advisers, is erroneous. 



The scheme of that Treaty provides that the five questions submitted 

 in Article vi should be kept distinct from, and that the decision there- 

 on shoidd be prior to, the consideration of any question of concurrent 

 regulations, which consideration would only become necessary in the 



