ARGUMENTS ON PRELIMINARY MOTIONS. 9 



Had the matter stood there itmifjht have been su^g'ested that tliat was 

 all we wanted; bnt the United States, by their criticism, to which the 

 Attorney General lias called attention, submit to this Tribunal that it 

 is to reject part of the secondary evidence which has been put forward 

 by Her Majesty's Government, upon the ground that upon the face of 

 the newspaper account of the Keport it was to be presumed that in this 

 respect it was not trustworthy; and I beg the Tribunal to notice, that 

 the Government of the United States had in their possession at that 

 moment the original report addressed to the Secretary of the Treasury. 



Now I need not again enforce what the learned Attorney General has 

 said on the criticism of the United States with reference to allegations 

 made on behalf of Great Britain, but I now again call the attention of 

 the Tribunal to the Treaty. The original of any iiaper adduced as evi- 

 dence is to be ordered by the Tribunal to be produced, if in its discretion 

 the Tribunal consider that it is material or pertinent to the matter before 

 it; and I again remind this Tribunal that it is a rule not only of this, 

 but of all tribunals which exercise judicial functions, that the best evi- 

 dence is to be at the service of the tribunal if it is possible. That is only 

 in the event of the failure of their being able to obtain the best evidence 

 that secondary evidence becomes either reasonable, or such as the Tri- 

 bunal should rely upon. 



Mr. Justice Harlan. — Does your motion comprehend the filing of 

 this paper as evidence? 



Sir liiCHARD Webster. — My motion, Sir, comprehends the produc- 

 tion of this paper, so that the original may be referred to by either side, 

 and certainly by the Counsel for Great Britain, as the best evidence — 

 as the evidence of the Report which Mr. Elliott made, which we have 

 already referred to in our Ai)pendix. It is already in evidence ; we have 

 referred to it in our Appendix; it has been treated by the United States 

 in their Counter-Case as evidence; it is criticized upon the ground that 

 it is evidence, but it is said that a part of it you must reject, because it 

 happens to be written below the signature of the gentleman who pur- 

 ports to make the Report. I ask, suppose it be the fact that in the body 

 of the original Report there are the same figures which are referred to 

 after the signature in the extract given to us, my learned friends who 

 represent the United States would be the first to admit, that if those 

 figures were there they would not rely upon the accidental circumstance 

 that in the particular form in which they were cited by the paper they 

 do not appear, but that they are in the body of the Report to which 

 reference has to be made. I again respectfully press upon this Tribunal 

 that, without saying that a Treaty of this description is not to be con- 

 strued by the cast iron rules which we as lawyers might possibly apply 

 to legal or conveyancing documents, it is evident that if either party 

 refers in evidence to documents, the originals of which they have not 

 got or have not produced, the Tribunal shall order, if they see it is rele- 

 vant, the original to be produced. It cannot make any difference in 

 whose custody the original document is. Supposing it happened that 

 this was a document which the United States desired to produce or give 

 in evidence, it would be no answer for us to say, "You have got some 

 means of referring to the contents of that document"; the Treaty has 

 required the Tribunal and has enabled the Tribunal in its discretion to 

 call for originals which form part of the evidence adduced by either party. 



Sir, I have but one more word to add. It is, in fact, alluded to in the 

 sense of the Treaty even by the United States themselves, because they 

 do not S])eak of it as merely a newspaper report of sonu'thing which 

 Mr. Elliott is supposed to have said. Tliey refer to it as a newspaper 



