ARGUMENTS ON PRELIMINARY MOTIONS. 21 



a^nin, not one, but several, references to the report in question, Mr. 

 Elliott's report. And then we come to tbe Counter Case of the United 

 States, and I do not think, with great deference to the ability and 

 ingeiuiity of my learned friends, that they have made even an attempt 

 to answer the argument which we have founded upon their own refer- 

 ence in their own Counter Case to this report, because if they had con- 

 tented themselves with saying nothing about it, or with making a pass- 

 ing reference to it without challenging its authenticity, we should have 

 been perhaps in a somewhat different position from that in which we 

 now stand. But a report can be referred to for one of two iiurposes. — 

 It can be referred to as affirmative and positive evidence in support of 

 a particular view, or views. I conceive this point to be important. A 

 re])ort may be referred to and insisted upon for either of two purposes, 

 either for the i)ositive purpose, the affirmative purpose, of supporting a 

 particular view, or for the negative purpose of saying that that report 

 does not contain something that it is alleged that it does contain. It is 

 the latter reference, and the latter use of that re])ort, which the United 

 States representatives make in their Counter Case, because, not content 

 themselves with what my friend Mr. Carter has been pleased to call an 

 allusion merely to our alhision to the rejwrt, they challenge the authen- 

 ticity and the reliability of our statement in evidence in that report, and 

 say that that which we say is part of the report is not part of the report 

 at all ; and therefore they are relying negatively in relation to that report 

 upon the statement that it contains nothing of the kind which we allege 

 in one respect it does contain. 



Therefore it seems to me that that is an additional and a strong reason 

 why the whole document should be referred to. Whether adduced for 

 the purposes of affirmative or negative proof, in either case the docu- 

 ment itself, when its authenticity is challenged, must and ought to be 

 produced. 



Now so far I have been a little led to say what I should not have felt 

 called upon to say, because I wished to recall to the mind of each member 

 of the Tribunal what is the exact state of facts in relation to the refer- 

 ence to this report. 



Now I come a little more closely to the matter. I agree most cor- 

 dially with one observation of my learned friend, Mr. Carter, that the 

 framing of this Article IV — and I think he might even have extended 

 his statement — is of an exceedingly clumsy character. It is not such a 

 document as he would have settled, I think. It is not, probably, such 

 a document as we should have settled; but here it is. I do not suggest, 

 as my learned friends seem to think I have suggested, that this Tribu- 

 nal can go outside the terms of this Treaty so as to take upon itself 

 powers and jurisdiction that the Treaty does not give it. Nothing of 

 the kind. No such idea is in my mind, nor did I intend to suggest any 

 such idea to this Tribunal; but when you come to matters which are 

 within the jurisdiction and authority of the Tribunal, then I say that 

 neither this Treaty, nor any Treaty, nor any agreement of reference that 

 ever was framed, does in its minute details meet with every considera- 

 tion that may arise; and that within the fair terms of the Treaty itself, 

 and within the lines of jurisdiction given by the Treaty, it is, as to mat- 

 ters of mere detail, and matters of mere procedure, entirely within the 

 competence of this Tribunal to express its opinion as to what should or 

 should not be done. But I do not really feel that after the statement 

 of my learned friend, Mr. Phelps, I am called upon very much more to 

 argue that matter. I cannot conceive that when the representatives of 

 the United States on the one hand profess their willingness to produce 



