10 ARGUMENTS ON PRELIMINARY MOTIONS. 



extract which purports to be a summary of a report made by Mr. H. W. 

 Elliott to the Secretary of the Treasury. Therefore we respectfully 

 submit to this tribunal that upon first principles which govern the laws 

 of evidence, in the broadest sense of the term, an original document 

 which has been alluded to by the party desiring to refer to it, which 

 has been made part of their evidence by the original Case and by that 

 which upon the invitation of the United States was to be treated as part 

 of the original Case — the original of that document, we humbly sub- 

 mit to this Tribunal, must be produced; and we further point out that 

 it could scarcely be contended that because the only means accessible 

 to us happened to be in the first instance a newspaper extract from that 

 report, therefore we should be denied access to the original. 



Sir Charles Kitssell. — The form of the Order, sir, which I should 

 suggest tliat this Tribunal should make and which we request that they 

 should make, is this, that the Agent of the United States be called upon 

 by the Tribunal to produce the original or a certified copy of the Report 

 made by Mr. Henry W. Elliott on the subject of the fur seals, pursuant 

 to the Act of Congress of 1890. 



The President. — Have the United States anything to reply to this 

 Motion? 



Mr. Phelps. — The disposition, Mr. President, which we shall propose 

 to make of this application relieves us from the necessity of troubling 

 you long upon the subject of its admissibility. The circumstances how- 

 ever that attend, and have heretofore attended this application, and one 

 which preceded it, are such that we have not thought it right to allow 

 the subject to pass without an explanation to the Tribunal of the attitude 

 of the United States upon this subject, because it bears collaterally, in a 

 very important way as we conceive, upon other questions that the Tri- 

 bunal will hereafter encounter. Now, to begin with, 1 do not preceive 

 that the remark of my learned friend as to the value of this evidence, is 

 germane to this enquiry. The question is not upon its weight, but on 

 its admissibility. If it were ever so valuable, if not admissible it is not 

 to be admitted. If it were comparatively of no value at all, if it be 

 admissible they are entitled to have it in evidence. Another observa- 

 tion of my learned friend. Sir Charles Eussell, to which possibly I 

 attach more consequence than he did, is on the subject of what he 

 terms the general jurisdiction of this Tribunal. On these questions of 

 procedure we respectfully deny that under the Treaty the Tribunal is 

 invested with any such jurisdiction. If you were sitting as a Court, 

 a court of general judicial powers, the incidental discretion that would 

 attend the Tribunal, as we all know, is very large. The Treaty might 

 have invested this Tribunal with such discretion and such powers. It 

 has foiled to do it. It has undertaken to specify with great certainty 

 and particularity the method of precedure in bringing before the Tri- 

 bunal the evidence which they are entitled to consider. I do not 

 enlarge upon this point now, as it will become the subject of discussion 

 in a subsequent motion. I only make the observation, that it may not 

 be thought that we concur at all in the idea that this high Tribunal is 

 invested with any power to admit evidence, or consider evidence, except 

 precisely that which is conferred upon them by the Treaty under which 

 they are constituted. 



It is true, as has been stated by my learned friend, that an applica- 

 tion was made to the agent of the United States in February for the 

 production of this document, and it was refused upon the ground 

 which he has read to the Tribunal; refused upon a further ground 

 stated later in the letter of the agent, which he has not read. It is 



