28 AEGUMENTS ON PRELIMINARY MOTIONS. 



examine it or to receive it. I cannot speak of its contents, therefore, in 

 particular. It is a body, unquestionably, of fa(tts, statements, allega- 

 tions and matter which becomes evidence; which the Tribunal must 

 treat, if they receive it at all, as evidence; which may be, and we are 

 bound to presume if our learned friends care to put it in at this stage, 

 is very important evidence. It may be, for all we know, the evidence 

 that ma> determine the conflicting points in this case. It may be the 

 evidence that shall bring you to a conclusion upon this, that and the 

 other important question in disj)ute; the uew evidence contained in 

 the sui)i)lenientary report may settle these questions and bring us to a 

 decision that, without it, we should not have. 



Now then, what is the exact proposal? Without yet looking into 

 the letter or the spirit of this Treaty, what is the exact proposal that 

 is involved by the offer of this evidence at this time? It is that there 

 shall be put into the case, not only subject to the consideration of the 

 Tribunal, but commended by the terms of the Treaty to the especial 

 consideration of the Tribunal, a new and important body of testimony, 

 similar, I presume we have a right to suppose, to their jjrevious report. 

 Can we reply to iti? Can we contradict it, exjdain it, imi)each it, 

 modify it? The door is absolutely closed. It is not in the power of the 

 Tribunal to permit any such reply. It is not in our power to make it, 

 if the Tribunal should undertake to give us the opportunity. 



The evidence upon this subject is at the ends of the earth. It is in 

 Alaska and British Columbia and California and Asia. It is all over 

 the world. It is utterly impossible for us to attempt at this day to 

 introduce any evidence in reply to this document; and it is equally 

 impossible for the Tribunal, who are called upon by the Treaty, if pos- 

 sible, to determine this Case within three months from the time of its 

 submission, to afford us the opportunity. 



The result is that if our learned friends are right in supposing that 

 they are entitled to put in this evidence at this time, a mass of evidence 

 goes into the Case without the ])0ssibility of reply, presumably of the 

 highest importance. Now, I shall be glad to know if in the proceedings 

 of any tribunal that ever sat judicially for any purpose, since the princi- 

 ples of justice came to be known, any such proceeding was permitted, 

 as that a party shall have his cause decided upon the determination of 

 a question of fact, based upon evidence that he never saw and never 

 had an opportunity to reply to? Is it possible to carry this question 

 another step unless it is found that the Government of the United States 

 has been foolish enough to have brought itself by a distinct agreement 

 into such an extraordinary position as that? An arbitration to settle 

 facts that are in grave dispute, and must be determined upon evidence. 

 On what evidence? Evidence ex parte, evidence that the party against 

 whom it was produced was never confronted with and never had an 

 opportunity to answer, evidence that, so far as the Tribunal knows, 

 may be true or may be subject to complete contradiction. 



Now, let us look at the provisions of this Treaty and see upon what 

 ground it has been claimed by the learned Counsel or may possibly be 

 claimed by any Counsel, that this state of things shall be brought to 

 pass. It will be seen in the first place, that so far from this Treaty in 

 any of its parts, or in any of the si)irit that is to be derived from any of 

 its parts, contemplating such a result, or leaving it open to infer- 

 ence that there may be such a result, it is sedulously excluded. It is 

 provided in the 3""^ Article. " The printed Case of each of the two par- 

 ties, accompanied by the documents, the ofihcial correspondence, and 

 other evidence on which each relies, shall be delivered in duplicate to 



