92 ARGUMENTS ON PRELIMINARY MOTIONS. 



That is their statement. It will be observed that in this statement 

 they go back to the time of the original preparation of the Case, speak 

 of what tliey conceive to have been an erroneons construction of the 

 Treaty by the United States in the preparation of its Case, and speak 

 of their having conformed, in a manner, to that erroneous constiuction, 

 and to a certain extent, as a defence of their present action in submit- 

 ting this paper at the present time to the Tribunal in the manner in 

 which it was submitted. 



It was in this way that the question of the respective views of the 

 parties as to how the Cases and Counter Cases should be made up, 

 and what they should contain was brought into discussion before this 

 Tribumil, and it is this reference to tlie former action of the parties 

 which has enlarged the scope of the debate whi(;h might otherwise 

 have been confined within somewhat narrower limits. 



As that wide range has been given to it, and as the methods which 

 have been pursued by the parties under the Treaty have been referied 

 to in great detail and made the subject of discussion, I must take the 

 liberty in tliese concluding observations, designed as a reply to the 

 argument on the part of Her Majesty's Government, to go back to that 

 original time and very briefly recount the circumstances under which 

 the Cases and the Counter Cases were put in. Before I do that, how- 

 ever, I desire to make one or two observations suggested by the remarks 

 which liave been made by Sir Charles Russell in reference to evidence. 



The Tribunal wliich was created by the Treaty could not well be ])ro- 

 vided with the ordinary instrumentalities which areem])]oyed by courts 

 of justice for the purpose of ascertaining the truth upon disputed ques- 

 tions of fact. There could be no calling of witnesses and oral exa-mi- 

 nations and cross examination of them; and, as that was not possible, 

 it was not, of course, possible to apply to the Case those rigid rules of 

 the law of evidence which are followed both in Great Britain and in 

 the United States in reference to the introduction of evidence. That, 

 of course, was plain; and it was equally i)laiTi, or at all events it was 

 contemplated, that there would be differences of view upon questions 

 of fact as well as upon questions of law, and that some means there- 

 fore should be provided by which the parties should be enabled to 

 establish their views upon such disputed questions of fact. All that 

 the negotiators of the Treaty could do under the circumstances was to 

 I)rovide the best mode in their power; and while they could not follow 

 the rules of law exactly, to follow them so far as they could, and at 

 least to observe those fundamental j^rinciples of equality between par- 

 ties in the facilities which might be allowed to them for the purpose of 

 conducting their respective contentions. The examination and cross- 

 examination of witnesses was impossible; but was it impossible that 

 each party should be permitted to answer the proofs and the allega- 

 tions which his adversary might rely u])on'? Certainly, not. That 

 result, although not susceptible of being accommodated in the exact 

 and perfect way in which it is provided for in municipal Tribunals was 

 still susceptible of being accomplished in a substantial manner and in 

 a way sufficient to assure the administration of justice. 



The Tribunal which was to consider the questions was to be a Tribu- 

 nal composed of the most eminent jurists. It was properly to be pre- 

 sumed that they would be able to separate the material from the imma- 

 terial, to weigh the value which should be put upon this evidence and 

 that evidence, and that although they could not have the benefit in the 

 fullest and most complete extent of the ordinary rules which govern 

 the iutroductiou of evidence, still that they would be sufficiently aided 



