ARGUMENTS ON PRELIMINARY MOTIONS. 7 



in England, that would not be evidence at all. Therefore before this 

 Tribunal, not hampered by technical rules of evidence, it is at the best 

 only a secondary class of evidence, and if we had the document admitted 

 as it is set out, imjierfectly set out, in the documents connected with 

 our Case by the United States as authentic and a« reliable, the impor- 

 tance of the question would be here comparatively small. Again, I must 

 emphasize that which is the important point in this case. On page 75 

 and 76 of the Counter Case the United States, — and, as I see, the Mem- 

 bers of the Tribunal have not their books at hand for the moment, I 

 had better read it in full beginning at the second paragraph on page 

 75, — it reads thus. "The Commissioners" — I have read this already, 

 but I will repeat it, — " also rely on a newspaper extract which purports 

 to be a summary of a Report made by Mr. Henry W. Elliott in 1890 to 

 the Secretary of the Treasury to establish several alleged facts. One 

 of these statements in this alleged summary on Pribilofl' Islands in 1890 

 (section 382, page 40) is that there were 250,000 barren seals." 



This is cited by the Commissioners to show the lack of virile males on 

 the rookeries in that year. "An examination of the extract as pub- " 

 " lished in Volume 3 of the appendix to the Case of Great Britain dis- " 

 "closes the fact that this statement appears after the signature of" 

 "H. W. Elliott, and it cannot, therefore, be construed as a portion of" 

 " such Keport. Furthermore, how the Commissioners can question " 

 " Mr. Elliot's power to compute the number of seals on the Islands," 

 " as they have done, and still rely upon his computation of the number of " 

 " barren females, needs explanation." Now, paraphrase this paragraph. 

 When they say the British Commissioners rely on newspaper extracts, 

 I ask why should they be called upon to rely upon a newspaper extract 

 when the authentic document exists and is procurable? Why are the 

 United States through their Agents to be considered justified, on page 

 76, in throwing doubt upon the authenticity of one of the extracts that 

 upon the fact that, extract in part does not represent conclusions of Mr. 

 Elliott and is not part of his report, when the point can be determined 

 not by conjecture or speculation, but by examination of the actual 

 documents in the possession of the United States itself? I find great 

 difficulty, and I say it with all sincerity, in appreciating why it is that 

 this document, which owes its origin to a solemn Act of the Legislature 

 of the United States, should raise what I must, quite respectfully, call 

 the very narrow and very technical objections to this document which 

 are stated in the answer to the application for the document by the 

 Agent for the United States. I base my application, therefore, upon 

 these grounds : — First of all, that we ought not to be driven to rely 

 upon secondary evidence of a document the original being in the pos- 

 session and under the control of the representatives of the Government 

 of the United States; next, that it is within the terms of Article 4, that 

 this Tribunal should not compel us to rely upon secondary evidence, but 

 may, for their own information and for ours, direct the production of 

 the original or an authentic copy. I say the power is conferred upon 

 this Tribunal under article 4 in the second clause, which I have read; 

 but I say, if there were no such Article at all and even in face of that 

 Article, this Tribunal surely has the right to call for, for the better 

 information of its own judgment, and surely has, inherent in itself, as 

 a Tribunal to determine difficult and somewhat complicated issues, a 

 right to say this is a document which, from every circumstance attend- 

 ing its history, ought to be regarded as one of importance in this con- 

 troversy, seeing that it was procured at the instance of the executive of 

 the United States itself for the very purpose of informing those who 



