Jetté, K. C. M. G., Lieutenant Governor of the Province of Quebec, and the Hon. John Douglass Armour, Judge of the Supreme Court of Canada.

On July 11, 1903, the Hon. John Douglass Armour died in London, and on July 28, 1903, Mr. A. B. Aylesworth, K. C., of Toronto, was appointed in his place.

THE AGENTS.

It was provided that each of the high contracting parties should name one person to attend the tribunal as its agent. Hon. John W. Foster, of Washington, D. C., was appointed agent of the United States, and Hon. Clifford Sifton, K. C., Minister of the Interior in the cabinet of the Dominion of Canada, was appointed agent of Great Britain.

THE PROCEDURE.

It was provided that the written or printed case of each party, accompanied by all the evidence relied on to sustain it, should be delivered in duplicate to each member of the tribunal and to the agent of the other party, within two months from March 3, 1903, that within the next two months either party might in like manner deliver a counter case and additional evidence in reply, the power being vested in the tribunal to extend the last mentioned period if it should become necessary by reason of special difficulties arising in the procuring of such additional proof. The tribunal could require the exhibition of documents relied on by a party, and of evidence pertinent to the case which appeared to be in the possession of a party.

Within two months from the expiration of the time limited for filing the counter case, it was the duty of each party to deliver in duplicate to each member of the tribunal, and to the agent of the other party, a written or printed argument showing the points and referring to the evidence relied on, and either party could support the same before the tribunal by oral argument.

The tribunal was to assemble for the first meeting at London as soon as practicable after receiving the commissions, and was authorized to fix the times and places of all subsequent meetings.

It was agreed by diplomatic correspondence that it would be regarded as a compliance with the convention if the cases and counter cases should be presented on the day fixed in London and Washington to the embassies of the respective governments to be forwarded without a formal meeting of the tribunal at London. Great Britain asked an extension of time for the filing of the cases, but this was declined.

Inasmuch as the 3d of May fell upon Sunday, it was agreed that the cases should be delivered on May 2d, but in order to catch the Saturday's steamers it was subsequently agreed that the delivery should be on May 1st. Mr. Choate was authorized by Mr. Hay to receive the British case in London for the American members of the tribunal and the American agent.

On May 15th the British agent wrote to the American agent that it would be impossible to prepare the British counter case within two months and suggested an extension of two months. This was declined on the ground that the American members of the tribunal said that it was impossible to consent because of a contemplated special session of Congress, It was not considered desirable that the Secretary of War and Senator Lodge should be out of the country during such session. This declination was by cablegram on May 25, 1903. On May 29th a seemingly retaliatory step was taken which foreboded serious complications. This was a request on the part of Great Britain for the production of practically all of the documents referred to in the United States case, with the statement that the British agent could examine them in Washington or make arrangements to photograph the originals. This called forth a sharp reply from Mr. Hay, in which he said:

"The list of papers inclosed with your first note embraces documents all of which have been textually set forth in the

case of the United States, many of which are likewise printed in full in the British case without any material variation, and the originals of some of which should exist in the British archives. The documents called for in your second note are likewise textually set forth in the case of the United States. They consist not only of copies of official papers certified to by the chief officer of the respective departments of the government, but of extracts from official printed publications and from books accessible to the general public. It is suggested that such a sweeping request would hardly be approved by the tribunal.

"The treaty does not appear to provide for either the production or examination of original papers by the agent of the other party upon his own request, nor for permission to photograph any papers. Although no reason is given in justification of the unusual request of the British agent, the United States is desirous of avoiding all unnecessary delay and of affording every proper opportunity for verifying anything relied upon by it in its case. I take pleasure, therefore, in assuring you that the British agent, or a representative duly authorized by him, will be given full opportunity to examine and verify the originals in the exclusive possession of this government of anything contained in the case of the United States, provided that no delay is thereby caused either in the delivery of the counter case or of the printed argument, or in the commencement of the oral argument.

"I beg to add that it is the intention of the agent of the United States to take to London the originals or certified copies of all documents and papers contained in the case and counter case of the United States. and to be prepared to produce them at the request of the British agent approved by the tribunal."

Sir M. H. Herbert replied:

"I have now received a telegram from the Marquis of Lansdowne stating that His Majesty's government are not aware that any precedent exists for coupling the production of original documents with any condition such as that laid down by the United States government.

"The condition, moreover, in the opinion of His Majesty's government amounts to a refusal, as, without an extension of time, it is practically impossible to examine large numbers of documents and to embody the result.

"Both in private litigation and in international arbitrations the right to inspect has never been questioned, and His Majesty's government cannot, by accepting conditions, cast doubt on the existence of this right and thus establish a precedent which might prove a serious bar to a resort to arbitration.

"The originals in Russian, of which only translations are given, form a great proportion of the documents which it is desired to inspect. His Majesty's government consider that they have obviously a right to compare the originals with these translations.

"The description which has been given of other documents has not been sufficient for the purpose of tracing copies in England.

"His Majesty's government consider that in cases where certified extracts are given, they have clearly the right to see the whole documents so as to satisfy themselves that nothing material is contained in the omitted portions.

"His Majesty's government hope that on further consideration the United States government will agree unconditionally to their request, so that it may be possible to avoid the necessity of calling a special meeting of the tribunal to consider the matter.

"An application for the extension of time is expressly contemplated in the convention, and, unless this application is acceded to, it will be impossible to present fully the reply to the United States case. His Majesty's government cannot believe that the United States government will be prevented through any question of personal convenience from favorably considering the request, the refusal of which would entail the presentation of the British counter case in an incomplete form, as unsatisfactory to His Majesty's government as to the tribunal.

"His Majesty's government would accordingly be glad to learn that the United States government agree to the application of the British agent, whose request for an extension of time they strongly support."

This fully discloses that the purpose of Great Britain was to force an extension of time.

Mr. Hay, in a lengthy note of June 16, 1903, took the ground that no such special difficulties as the treaty contem

arisen.

plated as a condition precedent to the extension of time had He characterized the request in regard to documents as "a complete impeachment of the American case" and concluded as follows:

"I trust you will assure the Marquis of Lansdowne of the earnest desire of the President to bring this vexed question to a termination in such a way that it will leave no unkind feeling between the two nations, and that he is desirous of meeting his Lordship's wishes as far as possible. He has, therefore, directed me to state that the British agent, or his representative, will be permitted at his convenience to examine all the documents adduced in the case of the United States to which reference is made in your notes of May 29th and June 8th, without any restriction or condition as to the use he shall make of the results of his examination, reserving for the agent of the United States the right to enter such motion or objection before the tribunal when it assembles as he may think proper.

"I have already advised you of the intention of the agent of the United States to have in London the originals or certified copies of all documents and papers contained in the case and counter case of the United States. He has already prepared copies in the original of the Russian documents in the case. Should the British agent not see proper to take advantage of the permission herein given to examine these and other documents in Washington, and should desire it, the Russian documents will be forwarded to him at London.

"In closing, I have the honor to inform you that, in faithful compliance with the treaty, the counter case of the United States, which is already printed, will be delivered in the numbers heretofore indicated, on July 3d, at your embassy in this city, unless you should indicate that delivery at Newport will be more convenient to you."

Mr. Choate took the affair up actively at London with the Attorney General, who stated that while the British counter case would be delivered by July 3d, it would necessarily be incomplete and would be accompanied with a statement that it might have to be supplemented in some form.

In the reply to the note of Mr. Hay of June 16th it was claimed, for the first time, that the British government was