ARGUMENTS ON PRELIMINARY MOTIONS. 15 



evidence whicli might be supposed to be in our exclusive possession. I 

 think it will be admitted upon the other side that they have from time 

 to time called for documents to which perhaps they were not entitled 

 under the provisions of the Treaty, and which were yet freely thrown 

 open to them ; but I make this observation for the purpose of showing 

 that there has been at no time on the part of the United States any 

 disposition to withhold fi'om this Tribunal, or to withhold from the 

 otber side, any evidence pertinent to the merits of the controversy. 



We did, however, refuse to furnish this report. And why! The 

 Tribunal must have perceived already that there is something peculiar 

 about this report. I may assume that the Tribunal is familiar with the 

 practice of Governments to print and publish important reports and 

 documents — reports which have been made pursuant to provisions of 

 law. If Commissioners are appointed for the purpose of making en- 

 quiries — (appointed by a legislative body — our Congress for instance) — 

 their report is, in the ordinary course of things, published and made 

 known to the world. It already appears as a fact that this was not the 

 case with regard to this particular document. Her Majesty's agent 

 found the extract which he has incorporated in his case in a news- 

 paper. That was the only mode by which it appears he was able to 

 obtain it at that time. Therefore, there is something peculiar about 

 this report. What is that? Well, I am not at liberty to say, because 

 the evidence for it is not furnished by the Case; but I am at liberty to 

 say what well may have been the case, — it may have been a report 

 which the Congress of the United States that authorised the investiga- 

 tion which led to it conceived to be wholly erroneous, wholly unworthy 

 of credit, unworthy of publication, unworthy of adoption. It may 

 have been of that character. It may have been a report which, in the 

 judgment of the Congress of the United States, was inspired by bad 

 motives, and, therefore, not to be made public. It may have been a 

 report which, in their judgment, was inspired by motives hostile to the 

 interests of the United States, and hostile to their management upon 

 the Islands, and for that reason, therefore, not to be published. All 

 these facts, or some one of them may have been true, or may not have 

 been true. Something was true about it — which led to the withholding 

 of that report from the ordinary treatment which is accorded to docu- 

 ments of that character; and that too, long before this controversy 

 arose. Nevertheless, when the British Commissioners were in the 

 United States for the purpose of making their investigation, they 

 wished to have access to that report. It was freely thrown open to 

 them : — They were told ^' Look at it if you please." It was not with- 

 held. No demand, after the Treaty was framed and in the course of 

 the preparation by the respective parties of the Cases and Counter- 

 cases — no request — was made to the Government of the United States 

 for the production of that report or for furnishing a copy of it to the 

 other side to the end that they might incorporate it in the Case if they 

 pleased. If such a request as that had been made, the United States 

 could have said in answer to it, " Yes, we will give you the report, but 

 you must take it in connection with some explanatory matter which we 

 will furnish with it. There are reasons why this report has not been 

 made public, and if the report is now to be placed before the public we 

 wish to have also placed before the public the reasons which go to 

 explain it." That course was not taken. On the contrary, the agent 

 of Her Majesty's Government having incorporated into the British case 

 what purported to be some extracts from it printed in a newspaper, 

 and the United States in the preparartion of its Counter case being 



