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 Sir M. H. Herbert.

Department of State,
Washington, June 16, 1903.

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 case. 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 insuch 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 condition has been alleged and it is believed that none such exists. The British agent, in a letter dated May 15, to the agent of the United States made this statement: “A preliminary examination of the case for the United States, which reached my hands a couple of days ago, makes it clear that it will be impossible to prepare a counter case for Great Britain within the period of two months, which is, in the absence of an extension, contemplated in the treaty. The many allegations of fact contained in the case and appendix filed on behalf of the United States which can only be examined upon, and in the neighborhood of the territory in question, obviously renders further time necessary.”

It is suggested that neither the British agent nor the British Government can allege that it has been taken by surprise by the case of the United States. Full notice had been given to that Government and its representatives of the claims of the United States on this question. It has been the subject of much discussion during the sessions of the Joint High Commission in 1898 and 1899. Besides the oral consideration, a printed pamphlet was laid before the commission, entitled “Views of the United States commissioners on the Alaskan Boundary as defined by the treaty of 1825.” This document set forth at length the claims of the United States and every essential point made in the case of the United States was there mentioned. It is seen from the British case that this pamphlet was in the hands of the British agent. In addition to this, after the adjournment of that commission, the boundary question had been discussed at great length between Mr. Choate and the secretaries of the foreign office in London; so that the British Government had abundant notice of the views and contentions of the United States. Since 1898 the Alaska boundary had been a subject of correspondence and discussion, and ample time had been afforded the Canadian authorities to prepare their case. The character of the case of the United States could not, therefore, be a just ground for an extension of time.

Upon this point the Government of the United States has been diligent in making its wishes known. You will remember that during the negotiation of the treaty organizing the present tribunal, when you asked for a longer period than two months each for the preparation of the case and counter case, I explained to you the President’s wish that if the boundary was to be submitted to adjudication, it should be concluded within the time indicated by me. You accepted these conditions, and the treaty was signed.

In the month of March, last, after the British agent had begun his labors in visits to this Department, you expressed the desire of that official and your Government that the time should be extended for the preparation of the case and counter case, and you will recall that, in addition to a repetition of the views of the President, you were informed that the official engagements of two of the American members of the tribunal made it impossible to extend the time. Lord Lansdowne must, therefore, be laboring under a misapprehension of the facts if he fears, as seems to be intimated, that the Government of the United States is influenced in its action through any question of personal convenience. For reasons which are well founded, and which have been explained to you, the United States has not been able to consent to any change in the stipulations of the treaty in this respect, and it can not see any cause in the considerations advanced by the British agent for reversing its judgment.

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 29 and June 8, 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 3, at your embassy in this city, unless you should indicate that delivery at Newport will be more convenient to you.

I am, dear Sir Michael, faithfully yours,

John Hay.