62 ARGUMENTS ON PRELIMINARY MOTIONS. 



line of tlie question wLicU he is discussing and which we are to con- 

 sider. 



Sir Charles Eussell. — Well, Sir, may I be excused from making 

 any comment on that; beyond saying that I do not at all complain 

 whetlier it was in the line of my argument or whether it was not in the 

 line of my argument. 



Mr. Justice Harlan. — I did not understand you as complaining. 



Sir Charles Russell. — No, not at all ; but I was in this, sense taken 

 away from the point which I was upon, — the point of what is the mean- 

 ing of the word " evidence". I did not anticipate that I should be 

 called upon to go into this question etymologically; but I think as it 

 has been adverted to, perhaps th6 readiest answer and the most prac- 

 tical answer is to state tbis broad proposition, that there is no part of 

 the so called evidence in the United States Case, in the Appendix to 

 the United States Case, in the United States Counter Case, — excepting 

 always documents of a i)ublic character, — there is in the wliole mass of 

 it not one item tbat would be legal evidence in a Court of Justice over 

 which any of the distinguished judges who are here miglit preside if he 

 were either in America or in Great Britain. In other words, the volume 

 of material that has been put before the Court satisfies none of those 

 tests, — amongst others the great test of cross-examination, — wiiich 

 according to the systems of judicature prevailing both in England and 

 in United States woukl make it receivable as strictly legal evidence if 

 tendered. Now I hope I have conveyed my meaning. 



Well then if that is so, I think the Tribunal will see — I think you, 

 Sir, cannot fail to see, — that wlien you are dealing with two countries 

 whose system of law and judicature is substantially the same, and 

 when tliey have by the preparation of their Case and their Counter 

 Case and their Appendices treated as matter of an evidenciary charac- 

 ter to be put before this Tribunal matter which does not come up to the 

 test of legal evidence, the word " evidence" in the seventh Article does 

 not mean evidence which a Court of Law in either Country would 

 receive if strict objection were taken. 



But now, Sir, I have not yet, I am afraid, concluded. If I am right, 

 the conclusion so far of course is this, that when the question of regu- 

 lations comes on the tajiis, when the point has been reached, at which 

 alone the Tribunal are coini)etent to consider the question of regulations, 

 then they are entitled to avail themselves of any class of evidence within 

 the wide description I have given to it to aid them in that question of 

 regulations, and that evidence may be submitted on the part of either 

 Government. And in connection with the right of either government 

 up to the last moment to lay any matters before this Tribunal upon the 

 question of regulations, let me point out two things. First of all you 

 are aware, because it is part of the Treaty of Arbitration, and referred 

 to in tlie Treaty of Arbitration, of one of the matters which comes 

 before you ultimately for determination, namely, certain claims under 

 the modus viveiidi of 1892. The modus vicendi of ISOU is I presume in 

 your minds. 



The President. — Yes. We have a special Treaty for the modus 

 Vivendi. 



Sir Charles Russell. — Quite right. 



Senator Morgan. — It is hardly a special Treaty, it is made a part of 

 the Convention. 



Sir Charles Russell. — It is made a part of the Convention but it 

 is of a separate date and in a separate document. 



