APPENDIX TO COUNTER-CASE OF GEEAT BRITAIN. 303 



Mr. Foster incloses in his note a letter from Mr. Blaine, in which the ex-Secretary 

 of State, after briefly reviewing the course of the nej^otiations, proceeds as follows: 

 "Not one word was said or intimated respecting the question now raised by the 

 British Government as to a secondary submission of evidence after the tirst five 

 points set forth in Article VI had been decided by the Arbitrators. It was never 

 intimated that any other mode of proceeding should be had than that whicli is pre- 

 scribed by Articles III, IV, and V of the Treaty." He adds, " I shall be surprised if 

 Sir J. Pauncefote shall difi'erin the slightest from this recital of facts." 



In the first place, I beg leave to remark that the question was not " raised by the 

 British Government." It was raised by the United States Government, who, as I 

 venture with great respect to contend, irregularly submitted in their printed Case 

 evidence and arguments respecting concurrent Regulations which the Arbitrators are 

 only empowered to receive and deal with in the contingency mentioned in Article 

 VII, that is to say, in the event of concurrent Regulations being held necessary, and 

 who afterwards protested against the absence of all such matter in the British Case. 



In the next place, the omission of any provision in the Treaty as to the mode of 

 presentation of such evidence is quite natural, and easily explained. 



The contingency of such evidence being used could not arise until after the decision 

 of the Arbitrators on the five special questions. It was quite unnecessary, therefore, 

 to discuss during the negotiations, and by way of anticipation, the mode in which 

 that evidence should be brought before the Arbitrators. The contingency of that 

 evidence being used before the Arbitrators might never arise, and, if it did, the mode 

 of its presentation would be a matter of procedure for the Tribunal to settle. Indeed, 

 any discussion on that point would have been premature, as anticipating a decision 

 adverse to the United States on the five special qtiestions. 



Mr. Foster succeeded to the office of Secretary of State after the Treaty was signed, 

 and his references to me, therefore, would seem to be based entirely on Mr. Blaine's 

 letter. But it will be observed that in that letter Mr. Blaine appeals to me only to 

 confirm his "recital of facts," and not to support the conclusion which he draws 

 from the Treaty being silent as to the time or mode of presenting the evidence and 

 arguments in relation to concurrent Regulations. It cannot, I think, be contended 

 that the question is affected by the fact that the two separate Agreements of the 18th 

 December, 1891 (of which copies are annexed to Mr. Blaine's letter) were ultimately 

 embodied in one and the same Treaty. 



I have already stated the grounds on which it appears to me that the interpretation 

 placed by Mr. Foster on the Treaty, taken in its entirety, cannot be supi)orted. 



I think it may be convenient, in conclusion, to recall how the two Agreements 

 came to be included in one instrument, contrary to the original intention of the High 

 Contracting Parties. 



The proposal of Her Majesty's Government for the appointment of a Joint Com- 

 mission was for a long time opposed by the United States Government. It was 

 refused by Mr. Blaine when originally suggested in my note of the 29th April, 1890 

 (Blue Book "United States No. 2 (1890)," p. 455)*, as part of a scheme of settlement 

 of the dispute. It was again refused by Mr. Blaine when pressed on him by me 

 while negotiating the modus vivevdi of 1891, as reported in my despatch No. 81 of the 

 27th April of that year (see Blue Book "United States No. 2 (1891),' p. 2). 



During the following two mouths the negotiations were continued, on behalf of 

 the United States Government, by Mr. W. Wharton, the Acting Secretary of State. 



In my letters to him of the 10th and 11th June, 1891, I again strongly urged the 

 appointment of a Joint Commission — and, indeed, under instructions from the 

 Marquis of Salisbury, I made it a condition of signing the modus virendi. It was 

 then that the United States Government consented to the appointment of a Joint 

 Commission, with a stipulation that the Agreement should be separate from, though 

 signed simultaneouslv with, the Arbitration Agreement (see Mr. "Wharton's letters 

 of the 10th and 25th June, 1891 (Blue Book " United States No. 3," pp. 35 and 51). 



In his letter of the 25th June Mr. Wharton wrote thus: "It being understood 

 that an arrangement for a Joint Commission is to be made contemporaneously with 

 the conclusion of the terms of arbitration, I am directed by the President to pro- 

 pose the following separate Agreement." 



The Agreements were thereibi e kept separate, and with distinctive headings, as 

 shown in the copies annexed to Mr. Blaine's letter. But when the draft Treaty was 

 drawn up and handed to me for the approval of Her Majesty's Government I 

 observed that it comprised both Agreements, and in reply to my inquiry as to the 

 reason for this departure from the original arrangement, I Avas informed that the 

 Joint Commission Agreement entailed an expenditure of public money, and must be 

 laid before the Senate, as well as the Arbitration Agreement, and that it was consid- 



*The British Parliamentary Papers cited in this Memorandum are annexed to the 

 British Case, Appendix, vol. iii. 



