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TESTIMONY SECURED IN THE YEAR 1899 AMONG THE CHILKAT INDIANS.
Originals of the following:
1899. July 24.
SIR: I have the honor, pursuant to paragraph 4 of article of treaty of January 24, 1903, between the United States and Great Britain, to request certified copies of the following documents, specified or referred to in the United States case, without annexing copies thereto, to wit:
Marine map filed in the hydrographic department of the ministry of marine at St. Petersburg (No. 2629 223), mentioned in memoranda of United States Appendix, 251.
Survey of mouth of Chilcat River by Lindenberg, mentioned in report of governor of Russian colonies in America to the board of directors of the Russian-American Company, April 20, 1839, United States Appendix, page 382.
Coast map, mention of, in Mr. G. Davidson's report (Coast Survey Report, 1867), United States Appendix, 341.
Sketch relating to Tongas Island, mention of, in official correspondence and records of the War Department, United States Appendix, 349. Letter from Governor Seymour, mention of, in Colonel Scott's report to the Headquarters Military Division of the Pacific, United States Appendix, page 349.
Note from Doctor Tohmie, mention of, in Colonel Scott's report to the Headquarters Military Division of the Pacific, United States Appendix, 350.
Information relating to Indians living on the coast, mentioned as Inclosure G, in Colonel Scott's report to Headquarters Military Division of the Pacific, United States Appendix, page 350.
Letter from Mr. Duncan, mention of, in Colonel Scott's report to Headquarters Military Division of the Pacific, United States Appendix, page 350.
Instructions from Major-General Halleck, mention of, in Colonel Scott's report on the Indians to the Headquarters Military Division of the Pacific, United States Appendix, page 351.
Copy of statement of the boundary line, as published in an English journal, mention of, in General Howard's letter to Headquarters Department of Columbia, United States Appendix, page 360.
Plans of harbors made by Commander R. W. Meade during his cruise to the northward, mention of, in Colonel Meade's letter to Rear-Admiral Craven, United States Appendix, page 362.
Chilcoot Inlet Chart. Captain Beardslee's report to the United States Naval Department, United States Appendix, page 376.
Map mentioned in Mr. Max Pradt's letter to the United States Secretary to the Treasury, United States Appendix, page 457.
Chart by Lieutenant Symons, of the Jamestown, mention of, in Mr. G. W. Morris's report to the United States Secretary to the Treasury, United States Appendix, page 469.
Survey by Pilot Lindenberg, map and original journal kept by Lindenberg, mention of, in report of governor of the Russian colonies in America to the board of directors of the American Company, United States Appendix (No. 139), 312.
Maps, mention of, in report of governor of Russian colonies in America to the board of directors of the Russian-American Company(No. 139), United States Appendix, page 313.
Agent for Great Britain before the Alaskan Boundary Commission.
Sir M. H. Herbert to Mr. Hay.
NEWPORT, June 12, 1903.
His Majesty's Government take exception to condition laid down in your note of June 4, and strongly support application for extension of time. I am sending note by post, which should reach you Saturday morning.
Sir M. H. Herbert to Mr. Hay.
BRITISH EMBASSY, Newport, June 12, 1903. DEAR MR. SECRETARY: I duly telegraphed to my Government the substance of your personal note of June 4, in which you informed me that the British agent to the Alaska tribunal, or a representative duly authorized by him, would be given full opportunity to examine and verify the originals in the exclusive possession of the Government of the United States of anything contained in their case, provided that no delay were caused thereby either in the delivery of the counter case or of the printed argument, or in the commencement of the oral argument. 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 can not, 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 can not 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.
I may mention, in conclusion, that the British agent was fully aware that under the treaty originals of documents should be called for through the tribunal, but he considers the method adopted through diplomatic channels-as being more convenient and more likely to save time.
I should be very grateful if you could let me have an answer as soon as possible.
I am, dear Mr. Secretary, yours, very truly,
MICHAEL H. HERBERT.
Mr. Hay to Sir M. H. Herbert.
DEPARTMENT OF STATE,
DEAR MR. AMBASSADOR: According to your request, I have given the earliest possible attention to your note of the 12th instant, received on the 13th, in which you ask, on behalf of His Majesty's Government, that the condition be removed under which an examination was
to be granted of the documents in the case of the United States, and an urgent request is made for an extension of time in which to deliver the counter case.
Your note seems to confuse the production or examination of documents already introduced in the case of the United States with the application for an extension of time for the delivery of the counter, case, or to make the one dependent upon the other. Before making a specific reply to your requests, I beg you will allow me to review the provisions of the treaty upon those subjects, as the two requests are clearly separate and distinct, and are dependent upon different facts to justify them.
The third paragraph of Article II contemplates the possible need of an extension of time in the preparation and delivery of the counter This possibility arises, and an extension can be made, however, only upon two conditions, both of which must exist.
1. There must arise "special difficulties" in procuring the "additional papers and evidence" in reply to the case-documents, correspondence, and evidence of the other party.
2. These "special difficulties" must be shown and established in such a way to the tribunal that it is convinced that it is necessary to extend the time in order to give the party desiring the extension opportunity to procure the additional papers and evidence.
In the absence of the organization of the tribunal, it is to be presumed that the two governments must act in its place and exercise the power of extension by mutual consent. As the tribunal is made up of an equal number of commissioners from each nation, no disadvantage can arise through the failure of the tribunal to organize.
The fourth paragraph provides that if reports or documents are cited by one party without annexing a copy, they may be called for by the other party, if notice is given within thirty days; and that applications may be made to the tribunal for the production of the originals or certified copies of documents which are printed in the case, and they must be produced within forty days-that is, within seventy days after the case is delivered. But the counter case must be delivered according to the treaty within sixty days after the delivery of the case. It is apparent, therefore, that the natural delay in the production of such reports and documents was not among the "special difficulties" within the meaning of the treaty.
Such reports and documents already in evidence were not intended to be adduced by the other party, but it was intended that they could be referred to in argument as contradictory of the statements based upon them, or, if found to be falsified, as prejudicial to the offending party.
Furthermore, it must be shown to the satisfaction of the tribunal, and, in lieu of the tribunal not having organized, to the two governments, that "special difficulties" have arisen in procuring additional papers and evidence which are relied upon in replying to the case of the opposite party. If these papers and such evidence are not essential to the reply, then there would be no warrant for an extension. If they are essential, it must be shown to the tribunal that they are so, and that can not be done without specifying in what particular. It must likewise appear that the "special difficulties" have arisen since the treaty went into effect.
In any event it can not be presumed that the documents for which a demand for production or examination has been made can be held to be the "additional papers and evidence," the procuring of which is the only basis for an extension of time.
With these plain provisions of the treaty in view, I address myself to the reasons given by the Marquis of Lansdowne why the requests in your note should be granted. I can hardly accept without qualification his statement that no precedents exist for coupling the production of original documents with conditions such as those indicated in my note of June 4, and that in private litigations and international arbitrations the right to inspect has never been questioned. I do not understand that in such proceedings a litigant has the unquestioned and unconditional right to demand the production of such documents before the issues are joined. The courts often require that reasons should be given for such demands, and the usual practice, at least in the United States, is to produce the original documents upon the hearing of the cause. Such is plainly the intent of Article II of the treaty under which the two governments are acting.
Neither can I concede that the requests contained in your note of May 29 are in consonance with the usual practice in international arbitrations. They constitute a demand for the examination and photographing of almost the entire body of evidence submitted in the case of the United States, except that which had been obtained from British sources and had been published. None of the various arbitrations which have taken place between the United States and Great Britain, I venture to assert, furnish such precedent. In the Fur Seal Arbitration at Paris, under the treaty of February 29, 1892, in which the volume of documentary evidence was much larger than in the present case, the originals or certified copies of a limited number of documents were requested by the British agent, although asked after the expiry of the time fixed; and the certified copies were cheerfully furnished. In no other instance can it be recalled that such a complete impeachment of the American case has ever been made. And the request has been presented without alleging any reason for such a sweeping examination, one which would impose upon both governments much time and labor.
It now appears from your note that the request is made the basis of the renewed application for an extension of time for the delivery of the British counter case. I think I have shown that such a course has no warrant in the treaty, and it was for the purpose of avoiding such an issue as that now presented that the condition was made in my note of June 4. There has been no disposition evinced on the part of the United States to question the right of Great Britain to demand the production before the tribunal of original or certified documents upon the hearing of the cause, and while it has doubted the right to a production of such papers in advance of the hearing, permission for a full examination was promptly granted. The wisdom of the condition attached thereto has been fully demonstrated by your note, which shows that the labor and trouble which the British agent voluntarily seeks to assume by this request is made the reason of an application for an extension of time.
It is true, as stated by you, that application for the extension of time is contemplated in the convention, but I have pointed out that such extension is to be based upon one reason and only one. No such