"Then President Grant, in the case of the Virginius-a ship flying the United States flag, seized on the high seas near Cuba, and the crew in a very high-handed way shot-says in his fifth annual message in 1873:

"It is a well-established principle, asserted by the United States from the beginning of their national independence, recognized by Great Britain and other maritime powers, and stated by the Senate in a resolution passed unanimously on 16th June 1858, that American vessels on the high seas in time of peace, bearing the American flag, remain under the jurisdiction of the country to which they belong; and therefore any visitation, molestation, or detention of such vessels by force, or by the exhibition of force, on the part of a foreign power, is in derogation of the sovereignty of the United States.'

"Finally, Mr. Evarts, to whom I have already alluded, a lawyer of great eminence, in reference to the seizure of United States ships by Spanish gunboats in nonterritorial waters near Cuba-I think there was a protest also on the part of Great Britain in reference to this matter; it was in relation to an assertion on the part of the Spanish authorities extending six miles from the territory-writes this:

"It needs no argument to show that the exercise of any such asserted right [visitation and search] upon commercial vessels, on the high seas, in time of peace, is inconsistent with the maintenance of even the most ordinary semblance of friendly relations between the nation which thus conducts itself and that whose merchant vessels are exposed to systematic detention and search by armed force.'

Question as to Mr.
Elliott's Report.

On the assembling of the tribunal on the 4th of April, Sir Charles Russell moved "that the agent of the United States be called upon to produce the original or a certified copy of the report made by Henry W. Elliott on the subject of fur seals, pursu ant to act of Congress of 1890." The document referred to was a report made to the Secretary of the Treasury on November 17, 1890, in pursuance of an act of Congress approved April 5, 1890, providing for an examination of the condition of the Alaskan seal herds. This examination Mr. Elliott was appointed to make. He reported that he found at the island only a "scant tenth" of the number of young male seals which he saw there in 1872, and that the great dimunition in the herds was caused by driving and killing on land and by killing at sea; and he recommended that no driving and killing of seals for taxation and shipment should be permitted on the islands for a period of at least seven years; that a close season be at once established by international arrangement against pelagic sealing, and that a commission of British, Russian, and American experts be sent to the islands during the ensuing summer to make an impartial report on the subject. Mr. Elliott's report was not published by the government; but on

May 4, 1891, there appeared in the Leader and Morning Herald, of Cleveland, Ohio, accompanying a special dispatch from Washington, a copy of the letter with which the report was communicated to the Secretary of the Treasury, and in which its conclusions were summarized. The report itself was shown by the American to the British commissioners during the ses. sions of the joint commission at Washington in March, 1892, and was for a time in the British commissioners' possession, but was not formally communicated to them. The letter to the Secretary of the Treasury, as it appeared in the Cleveland newspaper, was printed in one of the appendices to the British Case.' As thus printed it was referred to in the Counter Case of the United States as "a newspaper extract which purports to be a summary of a report made by Mr. H. W. Elliott, in 1890, to the Secretary of the Treasury." It has been seen that it was provided by Article IV. of the treaty of arbitration (1) that if "in the Case submitted to the arbitrators" either party should have "specified or alluded to" any document in its own exclusive possession, without annexing a copy, such party should be bound, if the other party applied for it, to furnish a copy, and (2) that either party might "call upon the other, through the arbitrators, to produce the original or certified copies of any papers adduced as evidence, giving in each instance notice thereof within thirty days after delivery of the case," and that the original or copy so requested should "be delivered as soon as may be and within a period not exceeding forty days. after receipt of notice." On the 10th of February 1893 the British agent applied to the agent of the United States for several documents, and among them for "a full copy of the report of Mr. H. W. Elliott, in 1890, specified and alluded to on page 75 of the United States Counter Case." The agent of the United States declined to furnish the copy, saying that the Counter Case of the United States alluded to "a newspaper extract, not to Mr. Elliott's report, and specifically to the same as published in the Appendix to the Case of Her Majesty's Govern ment." The British representatives, therefore, in the manner above stated, called upon the agent of the United States, through the arbitrators, to produce the original or a certified copy of the document. In supporting his motion Sir Charles Russell admitted that the first clause of Article IV. related to documents in the exclusive possession of one party, and

1 Fur Seal Arbitration, V. 739.

referred to in its "Case;" but he contended that the second clause was intended to enable either party, if there were original documents important in the elucidation of the truth in the possession of the other party, to obtain such documents or copies of them, instead of being compelled to rely on secondary evidence. He also contended that the tribunal possessed inherent power, for the better information of its own judgment, to call for the production of documents for that purpose in the possession of either party. His argument on the point was supplemented by Sir Richard Webster. For the United States Mr. Phelps took the ground that the tribunal had no power to order the production of the document in question; that the second clause of the article did not give a party the right, by referring to a document in his Case, to compel the other party to produce it, but only contemplated a call by one party upon the other for documents which the latter had "adduced as evidence," and that the powers of the tribunal were limited to those enumerated in the treaty. Mr. Carter spoke in support of the same views. Counsel for the United States, however, after explaining their views on the question of right, stated that they were willing to produce the report, and, at the request of the president of the tribunal, presented the following written reply to the motion of Sir Charles Russell:

"The United States Government denies that Her Britannic Majesty's government is entitled under the provisions of the treaty to any order by the tribunal for the production of the document specified in the motion, as a matter of right.

"The United States Government, however, is willing to waive (so far as it is concerned) its right of objection, and to furnish to the agent of Her Majesty's government a copy of the document referred to, for such use as evidence as the tribunal may deem proper to allow;

"Not conceding, however, in so doing that either party at this or any subsequent stage of the proceedings has a right to introduce any further evidence whatever, upon any subject whatever connected with the controversy.

"And further stipulating that if the document referred to in this motion shall be used in evidence at all it shall be open to the use of both parties equally in all its points."

The tribunal through the president then announced the following order:

"The tribunal directs that the above-named document be regarded as before the tribunal, to be made such use of as the tribunal thinks fit."

Question as to
Procedure.

motions:

Immediately after the subject of Mr. Elliott's report was thus disposed of, the agent of the United States submitted the two following

..I.

"The agent of the United States desires to bring to the attention of the Tribunal of Arbitration the fact that he has been informed by the agent of Her Britannic Majesty, in a note dated March 25th ultimo, that he has sent to each of the members of the tribunal copies in duplicate of the supplementary report of the British commissioners appointed to inquire into seal life in Behring Sea.

"The agent of the United States, in view of this information, moves this Honorable Tribunal that the document referred to be dismissed from consideration, and be returned to Her Majesty's agent on the ground that it is submitted at a time and in a manner not allowed by the treaty.

"II.

"The agent of the United States moves this honorable tribunal to dismiss from the arbitration so much of the demand of the Government of Great Britain as relates to the sum stated upon page 315 of the Counter Case of said government to have been incurred on account of expenses in connection with proceedings before the Supreme Court of the United States;'

"And, also, to dismiss from the arbitration the claim and request of the same government, mentioned on said page 315, that the arbitrators find what catch or catches might have been taken by pelagic sealers in Behring Sea without undue diminution of the seal herd during the pendency of this arbitration;

"And, further, to dismiss from the arbitration the claim of the same government, mentioned on the said page 315, to show payments by it to the Canadian owners of sealing vessels;

"And that all proofs or evidence relating to the foregoing claims or matters, or either of them, be stricken from the British Counter Case, and in particular those found on pages 215 to 229 inclusive, of Volume II. of the Appendix to said Counter Case.

"The ground of the foregoing motion or motions is that the claims and matters aforesaid are, and each of them is, presented for the first time in the Counter Case of the Government of Great Britain, and that they are not, nor is either of them, pertinent or relevant by way of reply to the Case of the United States, or to anything contained therein, except so far as the same may tend to support claims for damages distinctly made in the original Case of the Government of Great Britain, and that so far as they come under that head the matters are irregular as being cumulative only."

I Supra, 797, note.

When these motions were presented, the president announced that the tribunal would hear argument on the first one immediately, but that discussion on the second would be postponed to a later stage of the proceedings. Mr. Phelps then addressed the tribunal in support of the first motion. It has been seen that from the beginning the two governments differed in their views as to the order of procedure, the United States maintaining that the whole case of each side should be presented together, while it was insisted on the part of Great Britain that questions of right should first be disposed of before the question of regulations was considered. By Articles III., IV. and V. the treaty provided for the filing of Cases and Counter Cases and the delivery of arguments. By Article VI. five specific questions of right were submitted to the decision of the arbitrators. By Article VII. it was stipulated that if the determination of those questions should leave the subject in such position that the concurrence of Great Britain was necessary to the establishment of regulations, the arbitrators should determine "what concurrent regulations outside the jurisdictional limits of the respective governments" were necessary, and that "to aid them in that determination the report of a joint commission to be appointed by the respective governments should be "laid before them, with such other evidence as either government may submit." By Article IX. provision was made for the appointment of a joint commission of four commissioners, and in this relation the article said: "The four commissioners shall, so far as they may be able to agree, make a joint report to each of the two governments, and they shall also report, either jointly or severally, to each government on any points upon which they may be unable to agree. These reports 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 arbitrators can not arise."

Mr. Phelps contended that the treaty contemplated the submission to the tribunal of nothing but the Cases, Counter Cases, and accompanying documents, and the arguments, as specified in Articles III., IV. and V.; that the words "other evidence," in Article VII., merely referred to the evidence embodied in the Cases and Counter Cases; and that the "contingency" contemplated by Article IX. was a failure to agree on an arbitration, or the supersession of the process of arbitration by a complete joint report of the four commissioners. These positions were supported by Mr. Carter.