APPENDIX TO COUNTER-CASE OF GREAT BRITAIN. 299 



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

 that tlie particular expresssions upon which Lord Koscbery rt-lies have nothing in 

 them inconsistent with the plain intention of the frauiers of the 'J'reaty, as mani- 

 fested by the main provisions above referred to. So far as the particular language 

 of Article VJI is concerned, two observations are to be made: 



1. Interpreting this language as it stands in the Treaty, and without referring to 

 any fact aliinide, it appears to be equally consistent with either view. The point at 

 which the Commissioners are to consider the matter of concurrent Regulations is 

 lixed; but neither the time uor the point at which the Report or other evidence is 

 to be laid before 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 bear- 

 ing u])on each view is submitted at the outset, although it is well understood that 

 in certain contingencies parts of the allegations and proofs will not be considered. 



2. As a matter of fact, what now stands as Article VII of the Treaty was, in the 

 same language, part of an Agreement entered into by the Diplomatic Representa- 

 tives 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 necessary 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 thereafter settled in framing other 

 provisions of the Treaty. 



Touching the language of Article IX, relating to a contingency in which it is con- 

 templated that the Reports might not be laid before the Arbitrators, and which 

 contingency Lord Rosebery supposes to be that of a determination by the Arbitra- 

 tors upon the five special questions submitted to them adverse to the United States, 

 I beg to submit that Lord Rosebery 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 was 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 Com- 

 mission. 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 Gov- 

 ernments, and not, as Lord Rosebery supposes, that of a' determination upon the 

 five special questions adverse to the contention of the United States. A communi- 

 cation from Mr. Blaine, one of the negotiators, is appended hereto, showing the cir- 

 cumstances under which the antecedent Agreement was made. It is believed that 

 Sir Julian Pauncefote, the negotiator on the part of Her Majesty's Government, will 

 not dissent from this statement. 



For the above reasons I cannot concur in the reasoning of Lord Rosebery, based 

 upon a special consideration of the language of particular clauses of the Treaty. 

 If his interpretation of the Treaty is correct, the whole matter of the submis- 

 sion of evidence and of argument as to matters affecting the question of nego- 

 tiations is, as I have already suggested, left without any prescription of methods 

 or limitations as to time. In view of the care taken in these particulars in the 

 Treaty as to the Case and Counter-Case and Argument, it is not to be supposed that 

 such an omission would have occurred. The provisions made were plainly intended 

 to cover all matters submitted. I am clearly of the opinion that the clauses cited 

 by Lord Rosebery, when properly examined in connection with the circumstances 

 under which they were framed, contain nothing inconsistent with the plain 

 8 general intention of the Treaty to secure to each party an opportunity to 



meet and overcome the allegations and proofs of his adversary upon the dis- 

 puted questions of fact; and even if these clauses should seem to contain matter 

 furnishing some support to the views expressed by Lord Rosebery, a familiar rule 

 of law would require us to subordinate the inference they may suggest to the main 

 purpose of the parties. It is a matter of frequent occurrence where Agreements 

 come before Judicial Tribunals for interpretation that incongruities are found 

 between those parts of a writing which express the main purpose of its framcrs 

 and those which relate to subordinate details. Such incongruities are always dis- 

 posed of by a reconciling construction which secures the main object which the 

 parties had in view. 



I entirely agree to the observation of Lord Rosebery, to the effect that the right 

 of property in fur-seals depends upon questions of law'; but I conceive that the ])re- 

 cise questions of law cannot be known, and cannot, therefore, be determined, until 

 the facts out of which they arise are known; and I cannot concur with Lord Rose- 

 bery in the view which appears to be entertained by him, that the facta concerning 

 the nature and habits of fur-seals, and the modes by which their increase may be 

 made subservient to the uses of man without endangering the existence of the stock, 

 are not pertinent to the claim of the United States to a property interest. On the 

 contrary, I regard these facts as in the highest degree important. 



