Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1903
Mr. Hay to Mr. Raikes.
Washington, June 26, 1903.
Dear Mr. Raikes: I inclose a memorandum in reply to the argument of the British Government of the 23d of June, for an extension of time for the presentation of evidence in the British counter case.
I am, my dear Mr. Raikes, sincerely yours,
Memorandum upon the note of the British ambassador, dated June 23, 1903.
1. “To enable His Majesty’s Government to deal with this question of occupation in their counter case, it is essential that they should be afforded full opportunity of comparing the translations (of Russian documents) with the original documents, and the extracts with-the context, and possibly preparing and appending alternative translations.”
In order to avoid any delay for the comparison of translations and originals, though under the treaty there is no provision for an extension upon such grounds, the United States will consent that any alternative translations which Great Britain may desire to place before the tribunal may be introduced at any time, either as suppiementals of the British counter case or by reference in the printed or oral argument, provided copies of such translations are furnished to the agent of the United States before the commencement of the oral argument.
Unless Great Britain desires to submit translations differing materially from those printed in the case of the United States, it can in no way affect the record before the tribunal. On the other hand, by the United States consenting to their introduction as above stated, the British case before the tribunal can in no way be prejudiced by proceeding with the delivery of the counter case before the original documents are examined.
2. “His Majesty’s Government have on their side a right, according to the provisions of the convention, to lay before the tribunal their claim for time sufficient for the examination of the evidence upon which the United States case relies in regard to a vital part of the matter in dispute.”
As already stated in the note of June 16 to the British ambassador, the inspection of originals or certified copies of documents offered in evidence by the United States does not constitute “the procuring of such additional papers and evidence,” upon which an extension of time for the preparation of the counter case may be properly asked, when “Special difficulties” arise in connection therewith. Such originals or certified copies are not “additional papers and evidence.” Their production is only to verify the correctness of evidence already submitted. For the purpose of preparing the counter case it is to be assumed that they are correctly submitted as printed.
As the time in which their production can be demanded is unlimited, it was contemplated by the treaty that they could be called for at any time for purposes of verification, even during the progress of the oral argument.
In case such production is after the delivery of the counter cases, and an examination discloses that the originals or certified copies materially differ from the copies submitted in the case of the United States, thereby affecting statements made in the British counter case in reliance upon the printed evidence of the United States, Great Britain would undoubtedly be entitled to amend its counter case to conform with the evidence of the original documents. In view of this right, which could not be denied, the British case, as finally laid before the tribunal, would in no way be prejudiced by relying upon the evidence printed in the case of the United States; and an inspection of the originals or certified copies is not necessary to protect Great Britain in any substantial right.
3. “The delay which this examination must cause is not the fault of His Majesty’s Government, but of the form in which the United State case has been presented.”
The treaty contemplated that a report or document might be referred to without producing a copy, for in paragraph 4 of Article II the following appears:
“If in the case submitted to the tribunal either party shall have specified or referred to any report or document in its own exclusive possession without annexing a copy, such party shall be bound, if the other party shall demand it, within thirty days after the delivery of the case, to furnish to the other party applying for it a duly certified copy thereof.”
All that can be demanded, therefore, under the treaty is “a duly certified copy.” It is apparent that the treaty contemplated, and it was understood by “the parties, that in certain cases citations only would be made, and full copies would not be produced of certain documents and reports in the “exclusive possession” of one party. The latitude thus given by the treaty could be employed by either party, and to criticise a method of presentation in accordance therewith is hardly warranted, while to ask for an extension of time upon such a ground is entirely without the provisions of the treaty. It offers no “special difficulties” in “procuring additional evidence.”
Furthermore, as was pointed out in the note of June 16, an examination of originals or certified copies can not be construed into “procuring additional papers and evidence,” the only ground stated in the treaty as a basis for applying for an extension [Page 528] of time. If the existence or validity of a document was one of the main issues, a preliminary examination might then be appropriately demanded; but no such question has arisen in the present case. It would be as proper to refuse to consider in evidence diplomatic correspondence and official reports until the signatures of the writers had been proven by sworn statements as to their genuineness as to imply doubt of the authenticity of other documents adduced in evidence by the United States.
It is to be presumed that in a proceeding of this character, in which the evidence is necessarily procured and submitted ex parte, a government acts in good faith. To deny that it proceeds upon that principle in collecting its evidence and in presenting it to an international tribunal amounts to a grave reflection upon its integrity. The same rules which apply to litigation between individuals before a municipal court can not be invoked in a controversy between nations. Such procedure would require that a party have opportunity to cross-examine witnesses, and that it should establish by sworn statements the authenticity of documentary evidence. The resort to a tribunal of the charancter of the one created under the treaty of January, 1903, rests upon the mutual confidence of the high contracting powers that each will act in good faith.
4. “The United States case contains also affidavits, being sworn statements of members of the Chilkat tribe residing at the head of Lynn Canal, and His Majesty’s Government are entitled to claim the time necessary for inquiry on the spot as to the credibility of these witnesses and the weight which should be attached to their statements.”
It would appear that Great Britain required time to procure, if possible, evidence with which to impeach the witnesses whose depositions are submitted with the case of the United States. Such evidence can not, in an international proceeding like the present, be properly introduced, nor, if introduced, can it be relied upon by the tribunal.
The treaty provides for two submissions of evidence, one in the case, the other in the counter case; besides these two opportunities, no evidence can be introduced except by the tribunal upon its own motion. It is manifest that, if the British Government can in its counter case produce proof that witnesses, whose evidence has been submitted in the case of the United States, are unworthy of belief, the United States would have no opportunity to establish their credibility by proving that they bore good reputations for truth and veracity. Under such circumstances it would clearly be unjust for the tribunal to take into consideration impeaching evidence, such, as it appears, Great Britain contemplates procuring. An entire case might be destroyed if such evidence were admissible, since a party would be precluded from rebutting it.
It therefore devolves upon the tribunal to determine from its general knowledge, and not from sworn statements, the weight which should be given to the evidence of this character. Such was the course pursued in the Fur Seal Arbitration, in which hundreds of depositions made by Indians were introduced without one being offered to impeach the deponents.
In view of the peculiar conditions existing in a judicial proceeding between nations, and the manifest inadmissibility of impeaching evidence, when taken ex parte and introduced in the counter case, when no reply can be made to it, the procuring of such evidence, however difficult it may be, can form no basis for asking an extension of time.
5. “Time is similarly necessary for the examination on the spot of certain statements made for the first time in the United States case as to acts of occupation and exercise of jurisdiction in the disputed territory by the United States.”
The United States conceives that Great Britain does not intend to assert that the fact of occupation and the exercise of jurisdiction by the United States along the Lisiere is new to the present controversy, but merely that the proofs adduced in substantiation thereof had not been fully submitted to the British Government before they, appeared in the case of the United States. Of the reliance of the United States upon these acts of sovereignty Great Britain had been previously advised both in the “Views” of the United States commissioners submitted to the Joint High Commission in 1898, and in the correspondence which subsequently followed between the United States embassy in London and the British foreign office.
Furthermore, Dr. George M. Dawson and the Canadian surveyor, Ogilvie, had, as early as 1888, reported upon the occupation of the head of the Lynn Canal by the United States, and it had been a subject of frequent debate in the Dominion Parliament. Great Britain was, therefore, put upon inquiry as to the extent of the occupation and exercise of authority by the United States in that region, and it entered into the treaty of January, 1903, with full knowledge of the claim of the [Page 529] United States as to its governmental acts in the Lisiere. Moreover, the British case in the present controversy devotes considerable space to the subject, and attempts to show that the United States exercised little control over the mainland until a recent date.
The United States claim of possession and occupancy was open and notorious and has been generally recognized. It therefore placed the burden upon Great Britain from the very outset to overthrow the presumption created by the existing fact that the United States was in possession and exercising control. Such evidence was properly a part of the British case and not of the counter case. It certainly could not form the ground for a request to extend the time in which the counter case should be delivered.
6. “It is impossible to obtain the results of this inquiry in a place so remote and embody it in the reply of His Majesty’s Government within the period of two months from the delivery of the United States case.”
Whatever difficulties attach to the procuring of evidence upon this subject, caused by the remoteness of the locality, existed and were known to exist when the treaty was signed January 24, 1903. The treaty provides that an extension of time may be secured “when it becomes necessary by reason of special difficulties which may arise in the procuring” of additional papers and evidence. As the difficulties of securing evidence in regard to occupation of the Lisiere by the United States were fully understood at the time of the signature, and they were not particularly referred to or excepted in the treaty, they can not be classed as “special difficulties.” And as they existed then they can not be said to be “difficulties which may arise.” The treaty clearly indicated “special difficulties” arising after it was signed, and therefore not then in existence.
The attention of His Majesty’s Government may be called to the fact that, knowing the United States was in actual possession, and having been frequently notified of its claim of sovereignty prior to the convention of January, 1903, Great Britain had approximately five months before the date of the delivery of the counter case in which to make investigations and obtain evidence “on the spot” as to the governmental authority exercised by the United States in and about the head of Lynn Canal and at other points along the Lisière. Because Great Britain failed to take immediate steps to collect proofs against the occupation of the United States immediately upon the signature of the treaty, or after the exchange of ratifications, it can not be pleaded that there has been insufficient time to procure evidence of that character, nor can such a reason be advanced for an extension of time. To grant a request for an extension upon such grounds would permit the British Government to benefit through a condition created by its own negligence, a result contrary to every legal maxim and principle of equity.
The United States having thus briefly reviewed the grounds upon which His Majesty’s Government relies to secure an extension of time in which to prepare and deliver its counter case, confidently believes that upon further consideration of the terms of the treaty it will no longer press its demand for such extension, but will submit its counter case and printed argument at the time fixed by the treaty, and be prepared to enter upon the oral argument as soon after the meeting of the tribunal in London as is compatible with the interests of the two Governments.