RELATING TO INTERPRETATION OF TREATY. 147 



Mr. Foster to Mr. Herbert. 



Department of State, 



Washington, November 9, 1892. 



Sir: I had the honor to receive through you, on the 25th ultimo, a 

 copy of Lord Eosebery's dispatch of the 13th of the same month, but 

 an acknowledgment has been delayed for the reason that the interpre- 

 tation placed by his lordship upon those provisions of the Arbitration 

 Treaty of February 29, 1892, which relate to the mode of procedure, 

 called, in the view of the President, for some response from the Gov- 

 ernment of the United States, and that this could be more intelligently 

 framed after the copy of the report of the Bering Sea Commissioners 

 made to Her Majesty's Government, and which Lord Eosebery ex- 

 pressed a willingness to furnish to the Government of the United 

 States, had been examined and the extent to which that report would 

 affect the Case theretofore prepared on behalf of Her Majesty's Gov- 

 ernment was more precisely known. 



This report having been furnished to the Government of the United 

 States and carefully examined, I now proceed to state the views enter- 

 tained by this Government upon the interpretation of the Treaty in the 

 particulars above mentioned by Lord Eosebery. That interpretation 

 has been considered with the care which its character demands, and I 

 am constrained to say that I can not concur in it. It appears that, ac- 

 cording to the view of Lord Rosebery, all matters relating to the nature, 

 habits, and life-history of the fur-seals, and the modes by which they 

 are taken and killed, that is to say, substantially, all the matters upon 

 which questions of fact arise between the parties, are relevant only to 

 the question of concurrent regulations, and not to the claim of a prop- 

 erty interest asserted by the United States. 



If this view be correct it follows that the treaty makes no provision 

 by which the allegations and proofs of the one party upon controverted 

 questions of fact may be met, considered, and overcome by the other. 

 Lord Eosebery himself is able to point to no provision affording to the 

 parties an opportunity so essential to the preservation of their just 

 rights, except that contained in article vii, which declares that, in the 

 event that the arbitrators are called upon to consider the subject of 

 concurrent regulations, " the report of a joint commission to be ap- 

 pointed by the respective governments shall be laid before them, with 

 such other evidence as each government may submit." If this clause 

 were to be interpreted as permitting the parties to lay before the arbi- 

 trators evidence pertinent to the subject of concurrent regulations after 

 the exchanges of the Cases and the Counter XBases (a view to which 

 the United States does not assent), it certainly makes no provision for 

 the furnishing of such evidence by the one party to the other, which the 

 United States insist upon as the essential condition for the establish- 

 ment of truth upon the disputed questions of fact. 



When we observe the industrious care with which the Treaty pro- 

 vides for the furnishing of Cases and Counter Cases, the first designed 

 to contain the allegations and proofs by which the respective parties 

 may wish to support their contentions, and the last to enable them to 

 meet and overcome the proofs adduced by their adversaries, is it pos- 

 sible to doubt that this provision was intended to cover the case of 

 disputed matters of fact? 



I will not repeat the argument urged in my note of September 27, 

 designed to show the unreasonableness of imputing to the framers of 

 the Treaty an intention so incompatible with the essential conditions of 

 a judicial proceeding as that which appears to be attributed to them 



