298 APPENDIX TO COUNTER-CASE OF GREAT BRITAIN. 



ment which he had suggested would be accepted, as a supplementary 

 instrument to the Treaty would involve many formalities, and would 

 require ratification by the Senate. 

 I have, &c. 



(Signed) Michael H. Herbert. 



flnclosure 1 in No. 3.] 

 Mr. Foster to Mr. Herhert. 



Departmknt of State, Washington, Novemher 9, 1892. 



Sir: I had the honour to receive through you on the 25th ultimo a copy of Lord 

 Rosebery's despatcli of the 13th of the same month, but an aclcuowledoment has 

 been delayed for the reason that the interpretation placed by Iiis Lordship upon those 

 provisions of the Arbitration Treaty of the 29th February, 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 Behriug Sea Commissioners made to Her Majesty's 

 Government, and which Lord Rosebery expressed 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 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 entertained by this Govern- 

 ment upon the interpretation of the Treaty in the particulars above mentioned by 

 Lord Rosebery. That interpretation has been considered Avith the care which its 

 character demands, and I am constrained to say that I cannot concur in it. It 

 appears that, according 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 facts arise between the parties, are relevant only to the question of con- 

 7 current Regulations, and not to tlie claim of a property 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 Rose- 

 bery' himself is able to point to no provision affording to the parties an opportunity 

 60 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 con- 

 sider the subject of concurrent Regulations, ''the Report of a .Joint Commission 

 to be appointed 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 Arbitrators evidence perti- 

 nent to the subject of concurrent Regulations after the exchange of the Cases and 

 the Counter-Cases (a view to which the Uuited 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 insists upon as the essential condition for the establishment 

 of truth upon the disputed questions of fact. When we observe the industrious 

 care with which the Treaty provides for the furnishing of Cases and Counter-Cases, 

 the iirst 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 possible 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 the 27th September, 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 by Lord Rosebery; but again calling the attention 

 of Her Majesty's Government to the views expressed in that note, I venture to sug- 

 gest, for the consideration of Lord Rosebery, that when it appears by the Treaty 

 that industrious care was taken to secure to each party to the controversy a knowl- 

 edge 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 and 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 

 disi)ose of any ambiguous language in particular clauses by a reconciling construc- 

 tion which will permit the known intentions of the framers of the document to have 

 their effect. 



