ARGUMENTS ON PRELIMINABY MOTIONS. 17 



one party has made an allusion to a document, and (if we interpret it 

 properly), that means where he has made a partial use of a document 

 in his case; in that instance the other party is entitled to a copy of 

 the whole upon making a due demand for it. 



iSTow let me call the attention of the Gentlemen of the Tribunal to 

 the other provision, quite distinct in its character and designed to 

 answer a totally ditierent purpose. "And either party may call upon 

 the other, through the Arbitrators, to produce the originals or certified 

 copies of any papers adduced as evidence, giving in each instance 

 notice thereof within thirty days after delivery of the case; and the 

 original or copy so requested shall be delivered as soon as may be, and 

 within a period not exceeding forty days after receipt of notice." I 

 Avill not stop at this moment to comment upon the rather clumsy fram- 

 ing of this provision. It was taken from a somewhat corresponding 

 provision in the treaty which constituted the Geneva Tribunal of 

 Arbitration ; and if there were any attempt to really enforce it, it would 

 be found perhaps somewhat difficult to construeits particular terms ; but 

 as to its spirit and purpose, its real object and meaning, I think that is 

 apparent upon the face of the provision, — " either party may call upon 

 the other, through the Arbitrators, to produce the originals or certified 

 copies of any papers adduced as evidence". Now that refers to the 

 case where a paper is adduced in evidence — the ichole of it. In such 

 case the other party, as is often the case in judicial proceedings, may 

 have some doubt as to the authenticity of the document, — he may have 

 doubts about that; and, if he has, it is fair that those doubts should be 

 satisfied, and this provision is one for the removing of such doubts. It 

 is an obligation on the party who puts a paper in evidence, — the whole 

 of a paper, — to furnish to the other party the original or a certified copy 

 of it to the end that the latter may be satisfied of its authenticity. That 

 is the provision. 



Now does this case fall within the first of the categories mentioned? 

 Plainly it does not. There is no pretence here that there is any allu- 

 sion of any nature or description by the United States to this docu- 

 ment in its case. That is not pretended. The allusion, if it is made 

 anywhere or contained anywhere, is in the counter case of the United 

 States ; and that is a case not provided for by the terms of the Treaty, — 

 not within its letter, and not, as I have endeavoured to explain to you, 

 within its spirit or purpose. That is the first difficulty, and it is an 

 insuperable one, in bringing this motion within the first clause of the 

 paragraph in question. 



But there is another difficulty. I have said that it is not alluded to 

 in our Case but in our Counter Case, if at all. But we have not alluded 

 to it there unless when, perchance, a document is mentioned in any way 

 or for any purj^ose in a Counter Case, that is understood to be an " allu- 

 sion". Her Majesty's Government in its original Case had alluded to 

 this Report, and had specified and had attempted to put in evidence a 

 certain i)art of it; and, of course, if it was a document in the exclusive 

 possession of Her Majesty's Government, there would then have been a 

 case in which the Government of the United States might have made a 

 very effective demand for the production of the whole paper. Great 

 Britain alluded to it in her Case. Did the Government of the United 

 States allude to it at all? No; they commented upon this allusion to 

 the Report by Great Britain. They made certain criticisms in refer- 

 ence to that allusion. Is that making an allusion to this Rei)ort in the 

 sense of that Treaty by the Government of the United States? It is 

 very plain that it is not. All that the United States did was to com- 

 B S, PT XI 2 



