12 ARGUMENTS ON PRELIMINARY MOTIONS. 



either party shall have specified or alluded to any lieport in its own 

 exclusive possession without anuexinji; a copy," what is the meaning of 

 that? It is that if either party shall have brought forward by specifi- 

 cation or by allusion any document in support of any contention and 

 has relied upon it, and has put it forward so that his Case is in any 

 resi)ect strengthened by the allusion, then at the instance of the other 

 side he shall produce the full copy of the document he refers to. And 

 that provision is founded in the greatest and most obvious propriety. 

 But is a reference to a document in the Counter Case in reply to a part 

 of it that has been brought forward on the other side, such an allusion 

 as the Treaty contemplates? It is difficult to read these words without 

 perceiving what the spirit and object of the i^rovision is, that a party 

 shall not be permitted to fortify himself in any way by a reference to a 

 written document in his own exclusive possession, without giving the 

 other side (if they ask for it) the benefit of the entire contents. But 

 when the other side thinks proper to allude to some copy or extract in 

 their own possession out of a newspaper and a reply is made to that in 

 the Counter Case saying that it is not authority or is not material, have 

 we brought forward the Report as in any way assisting the case of the 

 United States? I do not i)ress the subject, because it is immaterial. 

 I have said thus much in order to state the justification which we think 

 existed, and exists now, for the refusal of the United States in Febru- 

 ary to produce this document. And if it be said that the refusal was 

 based upon a technical ground, although, the technical ground is well 

 founded correct, I may be permitted to say that this Case will not pro- 

 ceed very far, in my judgment, without disclosing that we should have 

 been j)erfectly justified, and are perfectly justified, in standing upon 

 any ground iii respect to the admissibility of evidence, whether it is 

 technical or not. 



A subsequent contention of my learned friend is, under the latter 

 clause of this Article, that either party may call upon the other through 

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

 adduced as evidence. Adduced as evidence by whom? By his adver- 

 sary. Was it ever heard of in a Court of Justice that one party, by refer- 

 ring to a document, can compel the production of it on the other side? 

 Where a document is in the exclusive possession of one side, under the 

 rules of law that prevail in England and in America, before secondary 

 evidence of it can be given by the other, notice to produce it must be 

 given. If that notice is not complied with, the secondary evidence 

 becomes primary evidence, and is admissible. In some jurisdictions, 

 there are statutes under which through the process of a subptena, pro- 

 duction of papers, private papers to some extent, and under -various limi- 

 tations, may be called for. I know of no general rule of law in England 

 or in America that justifies a party in calling upon his adversary to 

 produce a document, I mean to comi)el his adversary to produce a docu- 

 ment, because he has referred to it as part of his Case. 



Now let me add another word. This paper was produced and fur- 

 nished to the British Commissioners during their Session at Washing- 

 ton, and remained in their possession as long as they cared to keep it. 

 It will be seen therefore that there has been no disposition on the part 

 of the United States Government to withhold or to conceal it; and the 

 foundation of the objection which we conceive to be an unanswerable 

 one upon the terms of this Treaty to being compelled to produce it, was 

 the fact that, if produced, it came in as it comes in now, too late to be 

 met by the proper reply. 



