148 DIPLOMATIC CORRESPONDENCE. 



by Lord Eosebery ; but again calling the attention of Her Majesty's 

 Government to the views expressed in that note, I venture to suggest 

 for the consideration of Lord Eosebery that when it appears by the 

 treaty that industrious care was taken to secure to each party to the 

 controversy a knowledge beforehand of the allegations and proofs of 

 the other, to the end that a contest might be the more intelligently 

 made and the real truth more fully aud certainly established, it is not 

 a sound method of interpretation to nullify the effect of that intent by 

 attaching large importance to the mode in which particular clauses of 

 the document are expressed. It would seem to be more consonant with 

 reason and with the familiar principles of the interpretation of written 

 documents in such cases/to dispose of any ambiguous language in par- 

 ticular clauses by a reconciling construction which will permit the known 

 intentions of the framers of the document to have their effect. 



Applying this rule of interpretation to the case in question, I am of 

 the opinion that the particular expressions upon which Lord Eosebery 

 relies have nothing in them inconsistent with the plain intention of the 

 framers of the Treaty, as manifested by the main provisions above re- 

 ferred to. So far as the particular language of Article vn is concerned 

 two observations are to be made : 



First. Interpreting this language as it stands in the Treaty, and with- 

 out referring to aay fact aliunde, it appears to be equally consistent with 

 either view. The point at which the Commissioners [Arbitrators] are to 

 consider the matter of concurrent regulations is fixed; but neither the 

 time nor the point at which the report or other evidence is to be laid be- 

 fore them is fixed. The intention may just as well have been that this 

 should be done in the Cases, and furnished by the parties to each other. 

 It is a frequent occurrence in judicial controversies that cases present 

 alternative aspects. Such instances do not call for separate hearing 

 and decision; but the evidence bearing upon each view is submitted 

 at the outset, although it is well understood that in certain contin- 

 gencies parts of the allegations aud proofs will not be considered. 



Second. As a matter of fact, what now stands as Article vn of the 

 Treaty was, in the same language, part of an agreement entered into by 

 the diplomatic representatives of the two nations before the treaty was 

 concluded, and before the provisions in relation to the exchange of 

 Cases were framed. It is easy, therefore, to see that all that was nec- 

 essary at the time the Article was first framed and agreed upon was to 

 provide for the laying before the Arbitrators of their report and other 

 evidence, leaving the details of when and how such evidence should be 

 seasonably furnished by the respective parties to each other to be there- 

 after settled in framing other provisions of the Treaty. 



Touching the language of Article ix, relating to a contingency in 

 which it is contemplated that the reports might not be laid before the 

 Arbitrators, aud which contingency Lord Eosebery supposes to be that 

 of a determination by the Arbitrators upon the five special questions 

 submitted to them adverse to the United States, I beg to submit that 

 Lord Eosebery is clearly in error. The substance of Article IX was 

 also embraced in the agreement above referred to, which preceded the 

 treaty and created the Joint Commission. Although at this time it 

 w as contemplated that an arbitration should be provided for, it was yet 

 hoped by the negotiators on each side that a satisfactory scheme of 

 protection would be agreed to by the Joint Commission. 



The contingency referred to was that of an inability of the members 

 of the Joint Commission to come to an agreement satisfactory to their 

 respective Governments, and not as Lord Eosebery supposes that of a 



