It is submitted that the position thus taken is unsound. It is founded upon an incomplete quotation which omits significant words, It ignores altogether the provision in Art. II, and the effect of Art. III, construed in connection with it, and invokes a rule altogether so narrow as not to have possibly been within contemplation.
Art. II. provides that:
Each purty may present to the tribunal all pertinent evidence, documentary, historical, geographical or tepoyraplical, including maye and charts, in its possession or control applicable te the rightial decision of the questions solunitted.[1]
Here the door is opened wide, with no limitation except that the evidenve must be pertinent to the rightful decision of the questions submitted,
Art. III. provides:
The tribonal shall also take into consideration any action of the several governments or of their respective representatives prelininary or subsequent to the conclusion of said treaties so far as the same tends to show the original and effective nunderstanding of the parties in respect to the limits of their several territorial jurisdictions under and tw virtue of the provisions of said treaties.[2]
This does not limit the provision of Art. II., but whether the Tribunal might consider it pertinent or not makes it obligatory to also tuke into consideration uny such action of the several governments or of their respective representatives. Art. III. in like nuumer compels the Trilunal to consider the Treaties of 1824, 1825 and 1867. It has a diseretion as to determinine whether or not all other evidence introduced under Art. II. is pertinent. It has no such diseretion ns to that specitied in the superadded provisions in Art. II.
The British Counter Case assumes that Art. III. alone must he looked to, and that all of the evidence of the United States is introduced pursuant to the provisions of that article.
Art. III. obligates the Tribunal to consider certain evidence. It does not in any way restrict its discretion as to determining what other evidence is pertinent, The context shows that it was regarded that other evidence would be pertinent, and that in addition thereto
the evidence particularized in Art. III. shall also he taken into consideration, The statement that Art. III. “excludes all private action
