ARGUMENTS ON PRELIMINARY MOTIONS. 5 



Tribunal is engaged; and accordingly on tlie 10*'' February in tbe 

 present year the Agent of Her Majesty's Government addressed a letter 

 to Mr. Foster, the Agent of the United States, in these terms. It relates 

 to several documents, and I will only read that part of it which refers 

 to this report. "The undersigned Agent of Her Britannic Majesty's 

 Government has the honor, by the direction of Her Majesty's Govern- 

 ment, to give notice that lie applies for the production by the Agent of 

 the United States of the following documents or copies of the following 

 documents." — And then, under tlie third head, the document in ques- 

 tion is thus described. "A full copy of the report of Mr. Henry W. 

 Elliott in 1850 specified and alluded to on page 75 of the United States 

 Counter Case". The answer of Mr. Foster to that demand was made 

 in writing on the 16*^ February 1893, and referring to the document 

 in question (I omit the other parts) this is the answer which the Repre- 

 sentative of the United States thought proper to make. "The third 

 document" (that is this report) applied for by Her Majesty's Govern- 

 ment Agent is a full copy of Mr. H. W. Elliott's report iu 1890 speci- 

 fied and alluded to on i)age 75 of the United States Counter Case. 



"The undersigned begs to make the following statement in relation 

 to the document applied for. The reference cited iu the notice of the 

 Agent of Her Britannic Majesty is in the following words", And 

 thereupon is repeated the passage which I need not trouble you with 

 reading again. It then proceeds: "The Counter Case of the United 

 States alludes to a newspaper extract, not to Mr. Elliott's Eeport, and 

 specifically to the same as published in the Appendix to the Case of 

 Her Majesty's Government." The unwarranted construction placed 

 upon the citation by the Agent of Her Britannic Majesty's Govern- 

 ment is obvious. 



The next paper extract to which reference is made, is cited by the 

 British Commissioners, and therefore, it is to be supposed, is in their 

 possession. If not, it can be as readily obtained by Her Majesty's 

 Government as by the Government of the United States, which has 

 not the same in its own "exclusive possession", which is the condition 

 precedent required by Article 4 for the production of any report or 

 document specified or alluded to. I will come to the construction of 

 Article 4 in a moment. At present I wish to convey to the mind of the 

 Tribunal what this answer amounts to. 



First of all, what does it not amount to? It does not challenge the 

 fact that there is an official report in existence made by one specially 

 charged by the United States with the duty of making that report. 

 It does not deny that that report is in existence, and may be made 

 available should this Tribunal see fit so to direct. But what it does 

 say, in effect, is this: — You first referred to this report. You refer to 

 a newspaper extract. That newspaper extract is not exclusively in 

 the possession of the United States. Your production of it shows that 

 it is in your possession, and you have just as good means of getting 

 that newspaper extract as we, the United States. That is their 

 answer. I agree the answer is perfectly correct, as far as the news- 

 paper extract is concerned. It is equally available for both of us; but 

 what we want is to get the report which is referred to in that news- 

 paper extract: to get that rei)ort in extcnso. Our ground for urging 

 as a matter of good sense and of equity that we must have that report 

 is this; that they have in their reference to that extract challenged 

 its correctness, and its authenticity, and have alleged that the state- 

 ment referred to as a statement of Mr. Elliott is not to be regarded as 

 a statement of Mr. Elliott, because, as aj^pears in the newspaper 



