16 ARGUMENTS ON PRELIMINARY MOTIONS. 



called upon to refer to the allusion which had thus been made in the 

 British Case to this document, he then serves a written demand upon 

 the agent of the United States that he furnish him with that document 

 as a matter of right. 



Well, what if that had been complied with? Why then the Govern- 

 ment of Great Britain would have succeeded in obtaining this docu- 

 ment, peculiar in its nature, without those explanatory circumstances 

 which ought to have accomiianied it, which explanatory circumstances 

 the United States would have had no means of placing before the Tri- 

 bunal. It seemed therefore to be a proper occasion to look into the 

 Treaty, and see what the provision relied upon for this demand was, 

 and whether it authorised the demand or not. 



Now it seems to me, upon looking at the i)rovisions of the Treaty, 

 that it is quite plain that no such demand on the part of the British 

 Government was authorised. The provision of the 4'*^ article is this : 

 " If in the case submitted to the Arbitrators either party shall have 

 specified or alluded to any Eeport or document in its own exclusive 

 possession without annexing a copy, such party shall be bound, if the 

 other party thinks proper to a])ply for it, to furnish that party w4th a 

 copy thereof" That is the first provision. Well what is the object of 

 that"? what is the purpose of it; for when we are interpreting provi- 

 sions of this sort we must look to see what their object is. Why, it 

 seems very plain. Nothing is more common in judicial proceedings 

 than for one party in the course of his pleading, in making w]) his alle- 

 gations, or in introducing his proofs, to make a partial use of a written 

 instrument — not to use the whole of it, but to use a part of it — such 

 part of it as he supposes to favor his own contention, and he does not 

 tell his adversary what the rest of it is. Well naturally his adversary 

 says, " How do 1 know but that there may not be something in the 

 instrument which favors my contention, or goes to quality the infer- 

 ence which the party who has made use of an extract from it wishes to 

 draw from it"; and, therefore, the law usually furnishes a mode by 

 which, when a part of an instrument has so been used, the production 

 of the whole of it may be compelled by the adverse party. It is the 

 case of a partial use of an instrument. Let me again read this lan- 

 guage of the Treaty: "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 fur- 

 nish, that jiarty with a copy thereof". That would enable either party, 

 as the members of the Tribunal will perceive, when he comes to make 

 up his counter case to put in the rest of the document of which his 

 adversary has made a partial use, in his counter case or such part of it 

 as he may suppose to favour his contention, and thus the whole docu- 

 ment, or all that is material in it, is placed before the court or tribunal. 

 Now the Tribunal will perceive the reason why this provision is 

 restricted to the instance where a party has specified or alluded to a 

 document in his case. It is to enable the other party to get the rest of 

 the document, to the end that he may put it in evidence when he comes 

 to make up his counter case. If the allusion is made in the counter 

 case there is no occasion for giving the other party the rest of the doc- 

 ument for he has no means then of putting it in evidence, for the prep- 

 aration of the counter case absolutely concludes all the means furnished 

 by this Treaty for the introduction of evidence before the Tribunal. 



I think, therefore, it is quite plain from this explanation of the 

 article in question that the only instance to which it applies is where 



