Sir M. H. Herbert to Mr. Hay.
Dear Mr. Secretary: In reply to your note of June 16, I have the honor to inform you that His Majesty’s Government have carefully considered the reply of the United States Government to the application for extension of time for the preparation of the British counter case, and for permission to examine the originals of various documents used to support the case of the United States Government.
In regard to the extension of time, His Majesty’s Government desire to point out—in addition to the reason already stated—that the case of the United States Government rests to a large extent on the contention of Russian occupation of a part of the territory in dispute, and in support of this contention translations of a number of Russian documents, and of extracts from such documents, not previously brought to the notice of His Majesty’s Government, are given in the Appendix. 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 these translations with the original documents, and the extracts with the context, and possibly preparing and appending alternative translations. It would have been different had certified copies of these originals been appended. As matters stand it is clearly impossible that within a period of two months the documents should be copied at Washington and forwarded to London for comparison with the translations, and that the results of such comparison should be considered and embodied in the counter case.
The United States Government will no doubt readily admit that a translation stands upon quite a different footing from a copy of a document. It is not, strictly speaking, by itself evidence at all, but merely the personal opinion of an unnamed translator as to the meaning and contents of the document. If the United States Government desire that the documents in question should be treated as evidence, 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. The delay which this examination must cause is not the fault of His Majesty’s Government but of the form in which the United States case has been presented. But His Majesty’s Government do not rest their claim to an extension of time on this question alone. The United States case contains also affidavits, being the sworn statements of members of the Chilkat tribe residing at the head of the 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. 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 Government. It is impossible to obtain the results of this inquiry in a place so remote and to embody it in the reply of His Majesty’s Government within the period of two months from the delivery of the United States case. The possibility that at this stage of the proceedings an extension might be required and be granted by the tribunal was clearly contemplated by the terms of the convention (vide Article II), and the provision would be illusory if not exercised for the purpose now indicated. The tribunal [Page 526] not yet having been constituted, the two Governments would, as suggested in the United States note, naturally act in its place, and upon the principles by which the tribunal itself would have been guided. His Majesty’s Government are ready to meet, as far as they can, the convenience of the members of the tribunal in regard to the time for the oral argument, and will use every effort to complete their counter case at the earliest possible date; but the material embodied in the United States case has given them a claim to the extension of time for which they have applied, and for which, considering the important interests at stake, they feel bound to press. If the two Governments should unfortunately be unable to come to an agreement, it will be necessary to summon the tribunal in order that the point may be discussed.
His Majesty’s Government are convinced that in this event the tribunal will admit the justice of the applications, and they are anxious to impress strongly on the United States Government that the assembly of the tribunal merely to argue and decide the preliminary question would probably cause general inconvenience and the postponement of the discussion of the real question. An amicable arrangement in anticipation of the probable decision of the tribunal would, on the other hand, have the effect of expediting the ultimate hearing of the case.
Believe me, dear Mr. Secretary, yours, very truly,
For Sir Michael Herbert.