6 ARGUMENTS ON PRELIMINARY MOTIONS. 



extract, it appears to have been written under and not above his signa- 

 ture, and they take the point that upon the construction which they 

 are pleased to give to the 4**^ clause of the Treaty, a condition prece- 

 dent to the production of the original or an authentic copy is that the 

 document referred to in the Case or Counter Case shall have been 

 shown to have been, or to be, in the exclusive possession of one of the 

 parties. With great, deference to those who so contend and respect- 

 fully submitting the views which the government of the Queen enter- 

 tain, that would indeed be a very narrow, and, as we submit to your 

 judgment, an unsound interpretation of article 4. 



Now I would ask the attention of the Tribunal while I submit what 

 is the true construction of that article. It turns upon the last clause 

 of that article, beginning Avith the words "If in the Case". I think 

 my learned friends will probably agree that the earlier part is not 

 material or not directly material to the purposes upon which we now 

 aie engaged. "If in the Case submitted to the Arbitrators either 

 party shall have specified or alluded to any report or document in its 

 own exclusive possession, without aniiexing a cojiy, such party shall 

 be bound if the other party thinks proper to ap]>ly for it, to furnish 

 that party with a copy thereof." Now I agree that so far as I have 

 read this clause of article 4, it does point to applying only to docu- 

 ments in the exclusive possession of one party, and referred to by that 

 party. 



But it is the second branch of this clause upon which I mainly rely. 

 It then proceeds, " and either party may call upon the other, through 

 the Arbitrators, to produce the originals or certified copies of any 

 papers adduced as evidence, giving in each instance notice thereof 

 within 30 days after delivery of the Case". The distinction, therefore, 

 between these two branches of this rule is, I submit to the Tribunal, 

 obvious. The first part deals with a document exclusively in the 

 possession of one of the parties, and referred to by such one of the 

 parties in the Case submitted. The second branch deals with a much 

 wider, and much more important matter. It deals with this, that if 

 there exist in the possession of either party the original documents 

 which are important in the elucidation of the truth and in arriving at 

 a proper conclusion upon the facts, then the party who desires to rely 

 upon such document shall not be driven to rely upon uncertain, unsafe, 

 secondary evidence, or partial evidence, or extracts from the document 

 in question; but that the Tribunal shall have the means of assisting 

 that party in putting before the Tribunal the actual, authentic docu- 

 ment itself, or an authentic copy of the document itself. Surely that 

 is the reason of the thing. 



Lord Hannen. — You have not referred to the words " adduced as 

 evidence". 



Sir Charles Russell. — I read that. 



Lord Hannen. — I know you did. 



Sir Charles Hussell. — " Of any papers adduced as evidence", I am 

 coming to that next branch in a moment, but I read the words " adduced 

 as evidence". 



Lord Hannen. — Yes you did. 



Sir Charles Russell. — In this case we have adduced this report as 

 evidence. We have cited it in our Commissioners' report. We have 

 cited it in the third part of the appendix, page 53, to which I have 

 referred, but that is only what lawyers call secondary evidence of the 

 report. In a court of law, as my learned friends well know, governed 

 by strict rules of evidence as they are understood both in America and 



