ARGUMENTS ON PRELIMINARY MOTIONS. 19 



it happens to get before this Tribunal, it will be subject to our comments 

 and our criticism; and we are quite pre])ared to make them. We do 

 not conceive it to be worth while to withhold this j^apeK, and give any 

 sort of occasion or foundation for a remark to be made now and repeated 

 hereafter, that here is some very important document full of convincing 

 evidence, if the United States only chose to let it come out. We prefer 

 to waive it, and to remove the occasion for all such discussion as that 

 by putting the document before this Tribunal. As to whether the Tri- 

 bunal has the power to look into it, that is a question for the Tribunal 

 itself to decide: and that question has quite extended considerations, 

 which I will not now anticipate, but whi{;h will be brought forward 

 speedily in the course of the motions which it has become the duty of 

 the Agent of the United States to make; and, with these observations, 

 I will defer any other remarks until those Motions are brought on. 



The President. We ask you to put into writing the purport of your 

 reply, as we asked the British Government to state on i)aper their 

 Motion. So will you be so kind as to put on paper the substance of 

 your reply. 



Mr. Carter. — Does the President mean by that the substance of the 

 argument? 



The President. — ISTo, the substance of the reply. 



Mr. Phelps. — That shall be done. 



The President. — If you will kindly give it to us categorically, we 

 shall see exactly w^hat are the two contending Motions. 



Sir Charles Eussell. — Sir, I should have thought that this discus- 

 sion might have been a much briefer one after the statement made by 

 my learned friend, Mr. Phelps, in his very clear argument. His posi- 

 tions were two. He first contended that the Agent the United States 

 was justified in withholding the T)roduction of this document, and uiion 

 grounds which would put it out of the power of this Tribunal to order 

 its production. That was his first position. His second position was 

 that he was willing to waive any objection and to allow the document 

 to go before the Tribunal, leaving the Tribunal to attach such weight to 

 it as ui)on its examination they should judge it to deserve. If the mat- 

 ter had rested there, I should have been quite content not to have 

 troubled the Tribunal with any reply at all. But my learned friends 

 have thought it right, and it would not be becoming in me to suggest 

 that therein they were wrong, to branch out into a number of collateral 

 topics, which I respectfully submit are not germane to the particular 

 point which is now before this Tribunal. But before I say a word or 

 two about those topics, I should like to be permitted respectfully to 

 observe upon a view of this position suggested by a question addressed 

 by one of the Tribunal to the Counsel when arguing the case of the 

 United States, namely, the question whether it was competent for Coun- 

 sel by agreement at this stage to bring in any fresh evidence. That 

 was the purport of the question. Now, as that question, as I conceive, 

 involves a mistake of fact, I wish to remind the Tribunal again how 

 this matter of the Eeport of Mr. H. W. Elliott in fact stands in rela- 

 tion to the evidence already adduced. This is not, as seems to have 

 been suggested or su])posed, the first introduction as evidence of the 

 Eeport of Mr. Elliott at all. The Eeport of Mr. Elliott is already legiti- 

 mately in evidence in the original Case on behalf of Her Majesty's 

 Government. In the Ap[>endix to that Case, — 1 have given the Tribu- 

 nal already the reference — Volume 3, page 53, — this Eeport is referred 

 to, and, therefore, is in evi<lem'e, — to use the words of the Member of 

 the Tribunal, is already "adduced in evidence" as part of the case on 

 behalf of Her Majesty's Government. 



