58 ARGUMENTS ON PRELIMINARY MOTIONS. 



Sir Charles Kussell. — I had not at all forgotten tliat; and 1 am 

 now leading' u]) to it, as you will see in a moment. 



I was considering at the moment what one of the Tribunal said as to 

 the necessity of these reports being founded upon a joint investigation, 

 although they might be separate reports. I would like further to point 

 out that I do not myself think that it was intended — but I do not 

 myself see that these reports were intended to be invested, I do not 

 use the words in any way profanely, with any peculiar character of 

 sanctity, or that any very peculiarly great moral weigiit was necessa- 

 rily to be given to them beyond what their intrinsic contents would 

 justify. I have pointed out they were to be mere aids to the Tribunal. 

 They were not to be the rule for the Tribunal. They were to assist the 

 judgment of the Tribunal, not to dictate what that judgment should 

 be; and here I immediately come to the point suggested by Lord 

 Hannen. 



If that be so, it becomes eutirely unimportant — and this I say in 

 favor of the United States Commissioners' report as well as in support 

 of the Commissioners of Great Britain — it becomes comparatively 

 unimi)()rtiint to inquire whether these reports were founded upon a 

 joint investigation or u])on several investigations. They may have 

 failed to comply with the direction given in Article IX; but if they 

 supply means of information to enlighten the judgment of this Court 

 upon the subject of regulations, with which alone they are conversant, 

 then they come under the head of "any other evidence which either 

 Government may submit;" and I do not shrink from putting my propo- 

 sition as high as this: that up to the last moment, when discussion is 

 taking place on the subject of regulations, if either party can put 

 before this Tribunal matter which may, and in the opinicm of the Tri- 

 bunal ought, to affect their judgment upon the character of those reg- 

 ulations, it is within the competence of eitlier to do it. You will say, 

 according to the authority inherent in you, when the point has been 

 reached when you desire to retire to your chamber and consider the 

 questitm of regulations; but I say up to that moment — I put it as high 

 as that — you ought to seek, and you certainly would be entitled to seek, 

 for any information which can be put before you by either the repre- 

 sentatives of the United States or the representatives of Great Britain 

 which may help your judgment upon the question of regulations. 



Now the answer which my learned friend makes and that upon which 

 he bases his argument, is upon the ground of what he has been pleased 

 to call manifest injustice. Indeed, I think he said "outrageous injus- 

 tice". I think he used both expressions. That does lead me, really to 

 ask the Tribunal to consider what is the constitution of their own body. 

 I have pointed out that it is undoubtedly clear that as regards certain 

 of these questions, which I have denominated and again, for brevity, 

 denominate questions of right, they are simply to decide as judges and 

 as jurists. 1 reaffirm thgt proposition; but when I come to the further 

 question of what rules of evidence are to guide them in the determina- 

 tion of those questions of right, I have only to point to the Case of the 

 United States, to the Appendices to the Case of the United States, to 

 the Counter Case of the United States, and to the Appendices to the 

 Counter Case of the United States, in order to show you and make it 

 demonstrable that there is, in the view of those who represent that 

 great community, and that there is, according to the constitution of 

 this Tribunal, power to lay before this Tribunal what is not legal evi- 

 dence in a court of justice. 



