18 ARGUMENTS ON PRELIMINARY MOTIONS. 



ment upon an allusion made by tbe Government of Great Britain — that 

 is all. If a different interpretation could be put upon the terms of the 

 Treaty, a party would be j)recluded from denying, qualifyino- or criticis- 

 ing an assertion of his adversary which contained an alhision to a 

 Report without subjecting himself to the obligation to produce that 

 Report if it was in his exclusive possession; therefore I conceive it 

 quite plain that it does not come within the first clause. 



It does not come within the second, certainly. It has been argued 

 by our learned friends on the other side, that the second branch of the 

 clause of the treaty furnishes a means by which this Tribunal may be 

 supposed to be clothed with a certain general jurisdiction and authority 

 to compel the production of documentary, or other evidence, whenever 

 in its judgment it is necessary for the purpose of determining the truth. 

 I have no desire whatever to restrict within narrow limits the authority 

 of this Tribunal, but we must regard the terms of this Treaty and we 

 must adhere substantially to those, otherwise we shall be very speedily 

 at sea and without a rudder or compass. It is, we are all aware, a 

 common incident of ordinary municipal Courts of Justice, that they 

 have an incidental power over the parties to the controversies which 

 are brought before them, to compel such parties from time to time to 

 do such acts and things in the way of furnishing evidence, copies of 

 papers, documents and so forth, as may be supposed to be necessary 

 to the administration of justice in the cases before them. In such 

 cases the parties are private individuals. The Tribunal before which 

 they appear represents, and is clothed with, the sovereign power of the 

 State and can do with them as it pleases. That is not the case here. 

 This Tribunal is one specially constituted and clothed with such 

 powers as are specially mentioned in the Treaty, and with no others. 

 The parties who appear before it are not j^rivate individuals subject to 

 its authority; they are themselves sovereign states which cannot be 

 compelled. You have no sheriff or other officer at your hand that can 

 compel the action of the jiarties which are before you, and therefore 

 this suggestion that there is a general jurisdiction in this Tribunal to 

 order the parties to do what it may be supjiosed proper to do is one 

 which I conceive has no just foundation, and one which cannot be 

 accepted in any degree without leading us into difficulties which it 

 would be impossible for us to find our way out of. We must look to 

 the Treaty for the powers of the Tribunal, and where the powers con- 

 tained by the Treaty stop, the powers of this Tribunal stop also. My 

 conclusion from this is that we must dispose of this demand, which is 

 now put upon the second branch of the article, according to tlie lan- 

 guage of the Treaty. I have already explained what seems to me to 

 be its plain and manifest purjiose. It is to enable one party to call 

 upon the other party who has put a paper in evidence to satisfy him 

 as to its authenticity by producing the original. We do not fall 

 within that category; we have not put this Report in evidence. We 

 have made no allusion to it even, and therefore the United States can- 

 not be called ni)on under that clause of the article to produce it. 



Now, I have thought it proper to state my views in relation to this, 

 not because of the importance of this particular paper, but because it 

 is important that just views should be entertained of the powers of the 

 Tribunal at the very outset of its deliberations. Having said that, I 

 entirely concur with my learned friend that it is not worth while for the 

 United States to withhold this paper. It is not worth while. About 

 its weight, its importance in this controversy, commented upon to some 

 extent by our learned friends on the other side, I will say nothing. If 



