302 APPENDIX TO COUNTER-CASE OF GREAT BRITAIN. 



No. 4. 

 Sir J. Pauncefote to Mr. Foster. 



Washington, January 7, 1893. 



Dear Mr. Foster: With reference to our conversation at the 

 Department of State on the 5tli instant respectino^ the interpretation 

 l)laced on Article VII of the Behring Sea Treaty in your note to Mr. 

 Herbert of the 9th November last, and to the appeal therein made to 

 myself personally in connection with the point under discussion, I now 

 beg' leave to send to you, as arranged, a Memorandum of the grounds on 

 which 1 feel bound to disclaim the views inferentially attributed to me. 



I remain, &c. 



(Signed) Julian Pauncefote. 



[Inclosure in No. 4.] 

 Memorandum on Mr. Foster's Note to Mr. Herhert of November 9, 1892. 



Since my return to Washington I have had an opportunity of examining the official 

 correspondence which has taken place between Her Majesty's Government and that 

 of the United States on the qnestion whether the subject of concurrent RegiiLitions, 

 which under Article VII of the Behring Sea Arbitration Treaty are in the contin- 

 gency therein mentioned to be determined by the Arbitrators, should have been 

 dealt with in the printed Case delivered on behalf of Her Majesty's Goverument. 



I iind that in a note from Mr. Foster to Mr. Herbert of the 9th November last I am 

 inferentially appealed to by Mr. Foster, and also by Mr. Blaine, in support of the 

 contention of the United St.ites Government that the contingency mentioned in 

 Article VII does not refer to the decision of the Arbitrators on the live special 

 questions submitted to them, but to the inability of the Joint Commission to come 

 to an agreement as to the Seal Regulations. 



I am at a loss to understand this reference to me, as throughout the whole of my 

 negotiations with Mr. Blaine, and (during his prolonged illness) with the Assistant 

 Secretaries of State (Messrs. Wharton, Adee, and Moore), not one word was ever 

 spoken or written which could even suggest the belief that I ever held any view as 

 to the intention of the two Governments on the point in question other than that 

 which is plainly expressed in Articles VII and IX of the Treaty. 



With respect to those Articles, Mr. Foster states that the "contingency referred 

 to was that of an inability of the members of the Joint Commission to come to an 

 agreement satisfactory to their Governments, and not, as Lord Rosebery supposes, 

 that of a determination upon the rive sjiecial questions adverse to the contention of 

 the United States." Mr. Foster adds: "It is believed that Sir Julian Pauncefote, 

 the negotiator on the part of her Majesty's Government, will not dissent from this 

 statement." 



I desire to record my entire dissent from that view. It follows as a necessary con- 

 sequence that if the Arbitrators should determine that the concurrence of Great 

 Britain is not necessary to the establishment of Regulations for the protection of 

 seal life, the seal rishery would thenceforth be exclusively regulated by the munici- 

 pal law of the United States, and no "concurrent" Regulations would be necessary. 



Therefore Article VII provides that if it shall be decided that the concurrence of 

 Great Britain in any such Regulations is necessary, the Arbitrators shall then deter- 

 mine what those Regulations shall be. 



Article IX provides that the joint and several Reports of the Commissioners 

 10 A may be submitted to the Arbitrators "should the contingency therefor arise;" 

 and further, that the Commissioners shall make a .Joint Report "so far as they 

 may be able to agree," and that their Reports, joint and several shall not be made 

 public until they shall be submitted to the Arbitrators, "or it shall appear that the 

 contingency of their being used by the Ai'bitrators cannot arise." 



No other contingency is mentioned in the Treaty than that expressly laid down in 

 Article VII, namely, a decision on the first five points which shall necessitate con- 

 current Regulations. Yet it is now pro])osed on behalf of the United States Gov- 

 ernment to substitute an entirely new and different "contingency," unknown to the 

 Treaty, and in contradiction with its literal and reasonable sen^^e. 



The terms of Article VII are so clear and unambiguous as to preclude any extrinsic 

 evidence (if it existed) to modify their purport, for such evidence is admissible only 

 to explain what is doubtful, but not to contradict what is plain. 



