ARGUMENTS ON PRELIMINARY MOTIONS. 11 



only so far as may be necessary to justify the position of the United 

 States Government on this subject, that I shall trouble the Tribunal 

 with any remarks. If this document is admissible, it is made so by the 

 last paragraph of article 4 of the Treaty, the only one which has any 

 reference whatever to the subject. "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 annexing a copy, 

 such party shall be bound, if the other party thinks proper to apply for 

 it, to furnish that party with a copy thereof". That is the first half of 

 the paragraph. I shall consider the other further on. It will be 

 observed that the language of this provision is restricted to the Case 

 that has been furnished by either party; not to the Countercase, which 

 is a very different document. Article the third, as has been already 

 pointed out, provides for the delivery in duplicate by each party to the 

 other and to the Arbitrators, at a particular time, of a Case. Article 

 4 provides for the subsequent delivery by each party to the other, and 

 to the Arbitrators of a Countercase. Both words are used throughout 

 the Treaty. Each has its own meaning, and its own application. It 

 is not claimed on the part of my learned friends that any allusion to 

 this document whatever on either side took place in the Case, certainly 

 not our side; and I believe not on theirs. It is in the Counter Case 

 that the allusion is made, which appears to them to lay the foundation 

 for an application for the document. 



Now, it may be said, as has been said, this is a technical construc- 

 tion. That the more liberal view would be to treat the word "Case" 

 in this connection as including the entire submission by the party of 

 his allegations and evidence. The difficulty with that construction is 

 that what comes in in the Counter Case cannot be subject, under the 

 terms of the Treaty, to any reply, contradiction or explanation. The 

 Treaty closes the door, on the delivery of the Counter Case, to the 

 admission of any evidence whatever upon any subject; so that while 

 if a document is so far alluded to in the case of a jjarty as to make it 

 properly the subject of an application for the whole document, so that 

 the party applying for it can in his Counter Case make the proper reply 

 by evidence and allegation, there is a propriety and force in the pro- 

 vision ; but if, on the other hand, it is open to the party to call for the 

 production of a document which is alluded to for the first time in the 

 Counter Case, then that document which comes in as evidence for all 

 purposes for which it may be legitimately used, cannot be answered 

 on the other side. That is the reason; and that is one of the reasons 

 assigned by the Agent of the United States in the latter part of the 

 letter which my learned friend has read as one of the grounds upon 

 which this application is declined. 



But, to go farther, suppose for the purposes of argument that the 

 word "Case" here includes the Counter Case; what sort of an allusion 

 or s]iecification is it which the Treaty requires as the foundation for an 

 api)lication for such a document? 



Senator Morgan. — Is there no allusion to this paper in the British 

 Case? 



Sir Charles Russell. — Certainly there is, atpage53of the Appendix. 



Mr. Phelps. — There is none in ours, and I had the impression there 

 was not in theirs. But that is immaterial, because, as I am going to 

 I)oint out, it is " our" allusion that must be the subject of this applica- 

 tion, not theirs. Our first allusion to it, if it be an allusion to it within 

 the meaning of the Treaty, which we deny, is to be found in the Coun- 

 ter Case, in the passage that has been read by my learned friend. "If 



