ARGUMENTS ON PRELIMINARY MOTIONS. 83 



But altliougli tliat is so, I do wisli to say a word iipon what "evidonce" 

 does mean iu tliis Treaty. It will save discussion hereafter, and 1 am 

 happy to think that there are some parts of this discussion in which I 

 think I can reckon upon the support of my learned friends. I need not 

 point out that there are difterent meaning's which may be g^iven to the 

 word "evidence". There is no necessity for referring to any but two 

 for the purposes of this discussion, namely, evidence receivable accord- 

 ing to legal rule and determined in a judicial proceeding — that is one 

 kind of evidence; and the other kind is any material which will throw 

 light upon or enable the Tribunal to arrive at a conclusion upon ques- 

 tions of fact, although it may not be evidence which comes up to the 

 standard of technical evidence in a judicial proceeding. 



Q'he distinction is made more manifest when I remind the Tribunal 

 of this, and there is no member of it that is not conscious of it, that 

 what is legal evidence varies in different countries; nay, it varies even 

 in parts of the Queen's Domini(ms; as for instance, with barely one 

 exception, viz; questions relating to questions of pedigree — in the Eng- 

 lish Courts of Justice, hearsay evidence, as it is called, is not admissible. 

 I, as a witness testifying in an English Court of Justice, would not be 

 able, in proof of a given fact, to say that A. B. had told me that the 

 fact was so. But that class of evidence is admissible upon other than 

 questions of pedigree, even according to the Scotch tribunals, and the 

 system of judicature which they administer. The Scotch system is, as 

 no doubt many of you, if not all, know, largely founded upon the 

 Roman law, and the Roman law, again, gave a very much wider inter- 

 pretation of what was to be regarded, even in the judicial and techni- 

 cal sense, as evidence. So, again, France. The rules of evidence are 

 much wider as to the reception of evidence than those which prevail 

 either in England or in the United States. As far as the United States 

 is concerned we stand upon common ground. Their system of judica- 

 ture is founded upon <mr system of judicature; their common law is our 

 common law; and I could indeed give no better illustration of the com- 

 munity of law, even upon matters of evidence, and could say nothing 

 more creditable and praiseworthy of the judicature of the United 

 States, and of the writings of its lawyers than to point out the fact that 

 in England one of our principal text books upon law of evidence, 

 known as "Taylor on Evidence", a book that my learned friends are, 

 no doubt, familiar with, is absolutely founded upon — in great part taken 

 from — a well known American woik, by a well known author iu the 

 United States. I mean Mr. Greeideaf upon evidence. 



We could not theiefore have any better illustration that on this ques- 

 tion of the technical meaning of evidence both countries are in accord, 

 namely that an English text- writer on the question of evidence bases 

 his work ui)on tliat of a United States author treating on the same 

 subject. Then what does " evidence " mean in the language of a Treaty 

 to which two nations are parties who profess substantially the same 

 system of law. Well I think I may cut this part of my argument short, 

 and I am sure that it will be with a sense of relief that you. Sir, will 

 hear that. You can have no better means of knowing in what sense 

 the word " evidence " was used in this Treaty, than by showing the way 

 in which each of the parties have acted upon it. That being so, I turn 

 to their original Case witii its voluminous Appendices, and I make this 

 broad statement which I do not think will be denied, that with the 

 exception of some documents of a historical character, and public docu- 

 ments which would derive some sanction for their acceptance from their 

 public character, there is iu no part of the Case, or the Appendices of 



