Mr. Raikes to Mr. Hay.
Newport, July 1, 1903.
Dear Mr. Secretary: With reference to your personal note of June 26, and in reply to the memorandum which was inclosed therein, I am directed by His Majesty’s principal secretary of state for foreign affairs to inform you that His Majesty’s Government contend, and it is apparently not disputed by the United States Government, that, in appending to their case translations of documents on which they rely the latter failed to comply with Article II of the convention, which provides that documentary evidence should accompany the case. On this ground His Majesty’s Government would be fully justified in refusing to accept the case delivered on behalf of the United States, but they have refrained from this extreme step and have only requested the time required for the examination of documents not yet produced.
The convention clearly provides that each side shall have two months in which to reply to the evidence produced by the other side, and His Majesty’s Government are entitled to claim that period, if necessary, for the examination of and reply to evidence upon which the United [Page 532] States rely, but which they announce will not be open for examination until after the delivery of the counter case. It is not a question of “procuring additional papers and evidence” by His Majesty’s Government, but a claim that the United States Government shall comply with the stipulations of the treaty by producing evidence, and that His Majesty’s Government shall have the time specified by the convention to examine and reply to that evidence.
Even if it were merely a matter of producing an original or certified copy of a document adduced as evidence, the convention clearly contemplates that an extension of time should be given for that purpose, as the demand may be made at any time within thirty days after the delivery of the case, and a maximum of forty days for delivery is allowed after the receipt of notice. It is to be borne in mind that all the evidence upon which either party relies in support of its own case or in rebuttal of the other case must be supplied with the case and counter case, and that, while it is open to the tribunal to call for further evidence, it is not open to the parties without the concurrence of the tribunal to introduce new evidence after the delivery of the counter case, and, unless originals or certified copies of the documents called for were delivered in time to be dealt with in the counter case, it would be impossible to bring the result of their examination before the tribunal, unless the tribunal, of its own motion, called for it.
But the documents in question are not documents merely specified or referred to in the United States case. They form the whole evidence upon which a substantial and vital part of the United States case rests, and it could not have been contemplated that it should have been open to one party to base its case on evidence which the other party should not be allowed the fullest opportunity to examine and deal with, and, if the United States Government adhere to their refusal to afford His Majesty’s Government the opportunity of seeing and dealing with this evidence in their counter case, His Majesty’s Government must reserve their right to protest against its reception and consideration by the tribunal.
With regard to the claim to an extension for the purpose of examining on the spot the evidence of occupation adduced, His Majesty’s Government must demur to the statement that the fact of occupation, etc., was notorious, and evidence to overthrow such a presumption should have appeared in the British case and not in the counter case. In so far as a general claim to occupation and exercise of jurisdiction by the United States over the disputed territory is concerned, the fact is no doubt notorious, and the British case has dealt with that general claim as fully as possible in the absence of information as to the specific acts upon which it is based. But when a general claim is in question, and until the facts upon which it is based are brought forward, it is impossible to deal with it except by a general denial supported by such general negative evidence as may be procurable.
The case of the Indian affidavits cited in the Bering Sea case is not in point, as they were procured in support of specific allegations as to pelagic sealing which were notorious, and His Majesty’s Government were fully aware, therefore, of the statements which they had to meet. There was substantially nothing in those affidavits which had not been discussed at length in the diplomatic correspondence, or in the volume of inquiry which preceded the arbitration.
[Page 533]In that case, moreover, an extension of time was readily conceded, and counter affidavits were, as a matter of fact, filed with the British counter case. The procedure therefore supports the claim now urged.
In these circumstances the statement that the claim to an extension is not justified “on such grounds, as to grant it would permit the British Government to benefit through a condition created by its own negligence,” has been noted with surprise. His Majesty’s Government had no previous information nor means of procuring information as to the facts upon which the United States base their claim to occupation and exercise of jurisdiction in the disputed territory. These facts are for the first time brought to their notice in the United States case, and the demand of the United States Government that His Majesty’s Government should forego their right to examine the evidence adduced is to a demand that they should upon this issue allow the tribunal to have only the evidence of one side before it.
To this His Majesty’s Government can not accede, and they can not think that the United States Government will, on reconsideration, refuse to grant the extension expressly contemplated by the convention and insist that the tribunal shall be compelled to proceed without all the evidence on both sides before it.
Should His Majesty’s Government be disappointed in this expectation they would be fully justified in refusing to proceed further in the matter, and in any case they reserve their right to protest to the tribunal against the reception of evidence to which the opportunity of reply had been denied them, and to claim permission to put in such evidence in rebuttal of the statements in the United States case as they have been prevented from submitting with their counter case.
His Majesty’s Government can not bind themselves to any time for the opening of the oral argument. If the extension they now require is not granted, and the tribunal meets in September, His Majesty’s Government reserve the right to show cause before the tribunal for the postponement of the oral argument on the ground that time has not been granted to complete and examine the evidence which should be dealt with in their counter case.
I am, dear Mr. Secretary, sincerely yours,