ARGUMENTS ON PRELIMINARY MOTIONS. 13 



I shall not follow my learned friend in reraarkinj? upon the value of 

 this paper; that is a subject that will engafi^e the attention of the Tri- 

 bunal later on. It will be seen how valuable it is. It will be seen 

 whether there is any reason on the part of the United States Govern- 

 ment why it should be withheld. It is enough for me to say now, that 

 it has not been withheld from the Commissioners, that it would not 

 have been withheld from the other side if it had been asked for in time 

 to prepare a reply; that it was refused because being a document of 

 great volume and extent, it would have come in too late to have been 

 met by the explanation and the evidence which we think should accom- 

 pany it. 



Now, having" said all this, Sir, let me say that we shall produce the 

 document, and give our learned friends the benefit of it, with the under- 

 standing, which I assume to be, from the language of my friend. Sir 

 Richard Webster, satisfactory to them, that it conies in as evidence for 

 the benefit of either party. 



Senator Morgan.— Mr. Phelps, do you think that the Counsel in this 

 Case before this Tribunal, by an ag-reement amongst themselves can, at 

 this hour, bring evidence into this cause"? 



Mr. Phelps. — I was going to remark upon that. Sir, in a moment. 

 I do not think, as I shall have occasion to say at greater length, that 

 there is any jDower to bring evidence into this case at this stage. But 

 we do not choose to stand — we prefer that the Government of the 

 United States should not stand in this enquiry, subject to the rej^roach 

 of having attempted to withdraw or withhold or stifle anything that 

 throws any light upon the subject. The conduct of the whole case I 

 may respectfully submit, as it will sufficiently appear in due time, has 

 been the other way. 



Senator Morgan. — But how can the Tribunal give its consent to 

 exceed its powers merely for the purpose of preventing incrimination 

 or recrimination between the Governments by their counsel in debate? 



Mr. Phelps. — That will be a question entirely for the disposition of 

 the Tribunal. We are making no admission that binds the Tribunal. 

 We are making a concession that binds only ourselves. We say that 

 if the Tribunal at this stage of the case desire to consider this docu- 

 ment, we shall have no objection. That is as far as we go. But it 

 must be understood, and tliat is the object of these remarks, that we 

 in no respect concede what, before the day is over, we shall be called 

 upon to deny most emphatically — the right of a party to introduce any 

 evidence — any further evidence — at this stage or any future stage of 

 the Case. In making the concession, so far as we are concerned, sub- 

 ject, of course, to the judgment of the Tribunal as to the use they will 

 permit to be made of it, it must be understood that it is without w^aiv- 

 ing in the least the position, that no evidence at this stage can be intro- 

 duced as a matter of right. 



Mr. Justice Harlan. — It can be lodged, then, as evidence to be used 

 by either party, subject to the judgment of the Tribunal, when they 

 look into it, as to their power to use it. 



Mr. Phelps. — Certainly, Sir, we are not presuming to suggest to the 

 Tribunal what use they shall think proper to make of this document 

 when it comes before them; that is for them to consider. 



Senator Morgan. — Does the same argument apply to that part of the 

 British Case which Counsel have alluded to, which came in after the 

 Case had been placed in the hands of the Arbitrators"? 



Lord Hannen. — That is a different question. That depends on other 

 elements. 



