"The foregoing provisions of the convention of Santiago and of the rules of the commission do not suffice to determine conclusively whether or not ex parte proofs or affidavits are admissible by the commission. We must rely upon an indirect interpretation of these rules, especially rule 15, which establishes that the rules of evidence shall be determined by the commission,' with reference to the convention itself, the laws of the two nations, the public law, and the rules of this commission.

"Since these rules do not contain any provision relative to the admission of affidavits, it is therefore on the existing laws of Chile and of the United States, and on the authorities on international law, that the respondent bases its objection to the production of affidavits as legal and sufficient evidence. It is therefore necessary to examine those legal prescriptions and the decisions of other tribunals of arbitration, and to compare them with the provisions of the convention of Santiago.

"The Chilean law is in these words: 'It is not sufficient that the witnesses be competent for their declaration to have weight in a trial. It is necessary that in their examination all the formalities established by the law shall be observed to give authority and credit to their testimony. These formalities are: Judicial authorization, notice to the opposite party, the swearing of the witnesses, and the opportunity of the examination." (J. Bernado Lira, Prontuario de los juicios, law 23d, tit. XVI., Part 3.)

"The laws of the United States seem to be in accordance with those of Chile. The Revised Statutes, chapter 17 on Evidence, is in these terms:

"The deposition may be taken before any judge of any court of the United States. * * Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition.'

"See Greenleaf, vol. 1, chap. 3, § 446, page 541. See also: Foster Federal Practice, 2d edition, page 1267, and vol. 1, page 502. See Greenleaf, referring to depositions, in his work on Evidence, section 321, page 414.

"See Best on the Laws of Evidence, page 85; Wharton, Law of Evidence, section 177,

"But the laws of the States of the Union contain similar provisions: See articles 872, 873, 875, 881, 882, 899, of the Code of Procedure of the State of New York.

"See articles 425, 426, 430, 434, of the Code of Procedure of the State of Louisiana. See article 2033 of the Code of Procedure of the State of California.

"The same is the case respecting the laws of organization of the special tribunal of the United States known by the name of Court of Claims.

"See United States Revised Statutes, chapter 21. The Court of Claims and the rules of procedure adopted by that court, and the decisions of the same. The United States Court of Claims, vol. 21, page 54.

"All the preceding provisions and citations seem to establish, without a doubt, this rule: That ex parte affidavits are objectionable as evidence in accordance with the laws of Chile, the federal laws of the United States, and the laws of the States of the Union which have been already quoted.

"Lastly, the respondent government has referred to decisions rendered in conformity with international law, and it appears from investigations we have made in that connection that the Franco-American commission sitting in Washington from 1881 to 1884, followed the same principle. (See Vol. 4, page 117, case 33.)

"Without ignoring the force of such arguments, we believe that the character and nature of this kind of international tribunals is not irreconcilable with a broader construction of the means of investigation that might present themselves. Cases may arise in which because of the date of the occurrence, the impossibility of the party to summon the other party when taking the testimony, and because of the death in the course of time of the witnesses, it may be impossible to present them for cross-examination by the respondent party. When such circumstances arise it seems equitable not to reject this kind of evidence as entirely nul! and invalid. Without losing sight of the little weight or lack thereof attached by the most advanced legislations to this kind of evidence, we must on our part take them into consideration not as evidence but only as elements which in certain cases may contribute to a limited extent, collateral or secondary, to confirm or strengthen a conviction appearing to be based on proofs of a more conclusive character.

"We are of opinion that this interpretation is more in conformity with the true intent of the aforesaid convention, and it realizes the purpose of its mission, 'to settle and adjust amicably the claims made by the citizens of either country.' We judge that the commission very properly stands-as in other acts of its arbitral jurisdiction-upon the formal rules of procedure in use in the ordinary courts of justice, without overlooking the fundamental principles of said courts and their means of arriving at the elucidation of truth and administering justice. Acting thus, we also conform to article VIII. of the convention, which says: 'It shall be competent in each case for the said commissioners to decide whether any claim has, or has not, been duly made, prepared, or laid before them, either wholly or to any and what extent, according to the true intent and meaning of this convention.'

"This provision, taken with rule 15, leaves the commission at liberty to take affidavits into consideration and to attribute to them a limited value or no value whatever, according to circumstances. Thus it may give them a certain relative importance or deny them all value, especially when the parties have had opportunity to furnish better evidence and have neglected to do so, or when they have had opportunity to conform to the rules established by this commission for the validity of the proofs, and they have failed to observe them.

"The respondent government, in the second place, raises the following point: That going into the intrinsic merits of the depositions, no act from which the liability of the respondent government can be drawn is asserted in a precise and concrete manner, there existing prima facie a presumption, according to the claimant's very statement of facts, that the offenses complained of, if they occurred, were committed by parties other than the Chilean soldiers.

"Let us examine, now, the complaint and documents adduced by the memorialist.

"Elizabeth C. Murphy, in her memorial, No. 36, claims from the Government of Chile, in her own name, and in that of her children, the sum of $17,122.50, American gold, which she estimates, including interest at the rate of 6 per cent, to be the value of utensils, books, and furniture of her house, of which she was deprived by Chilean soldiers in 1881.

"The claimant alleges that she is an American citizen, as was also her husband, John A. Murphy, who died in Lima on

the 21st of September 1886, and as are also her seven children, of which the three youngest were born in Peru.

"She also states that her husband, with his family, left the United States in 1870 and went to Peru, where, later on, he was entrusted with the management of a country property called Melgarejo, situated nine miles from Lima.

"She states further that on the 9th of January 1881 John A. Murphy, being alone in his house, she and her children having gone to Lima on the approach of the Chilean forces, Chilean soldiers forming part of a reconnoitering party that had appeared on that day in the valley of Manchay, some distance from the Melgarejo estate, commanded by an officer, violently entered into his house, fired a shot at him, took a few articles, and made him prisoner, accusing him first of having rendered personal services as engineer in the works of defense of Peru and afterwards of being a spy to the Peruvian Government, charges which he denied.

"That he was kept as a prisoner until the Chilean forces entered Lima, where they set him at liberty.

"That he then came back to Melgarejo, and there discovered that his furniture, trunks with his family clothing, books, engineering instruments, etc., had disappeared, and that the Chilean soldiers had taken all he possessed.

"In support of the claim she submits the following documents:

"1. A certificate dated the 27th of July 1880, issued by the United States minister in Lima, in which the latter declares that John A. Murphy, wife, and five children had come before the legation and had proven that they were citizens of the United States.

"2. A communication, dated 20th of June 1881, sent by the said John A. Murphy to the minister of the United States in Lima, informing him that he claims from the Government of Chile the sum of $9,539, being the amount of the inventory made in November 1880 of the articles he possessed in his house on the estate of Melgarejo, with interest on that sum from the 9th of January 1881, plus $5,000 for the personal injuries and damages to which he had been subjected.

"3. The inventory of said articles signed by Murphy and two witnesses, J. C. Anderson and A. M. Leon. This document is accompanied by a certificate of the secretary of the legation of the United States, dated the 10th of January 1891,

in which this officer states that on that day appeared before him A. M. Leon and declared under oath that the foregoing inventory had been made by himself, Anderson, and Murphy, at the request of the last named; that the values therein stated are genuine, and that the signature with his name therein appearing was authentic.

"4. A certificate, dated 21st of September 1888, in which the commander of the ship Nipsic, of the United States Navy, avers as true the fact of John A. Murphy having been taken prisoner near Ate by the Chilean forces and retained as such till after the battles of Chorillos and Miraflores, when he was released to go to Lima.

"5. A certificate of the death of John A. Murphy, showing that he died on the 21st of September 1886.

"6. An affidavit made by James Faulkner, distiller by occupation, dated the 12th of December 1890, before the consul of the United States in Lima, at the request of Mrs. John A. Murphy, and in which the affiant alleges that he has lived since 1872 in the port of Callao; that he was present at the marriage of the aforesaid lady to John A. Murphy in Brooklyn, on the 18th of December 1856; that the former had his house in Lima elegantly furnished; that in 1880 he was employed by Mr. Henry Prevost on the estate of Melgarejo, where he took all his furniture and where he resided with his family, and, finally, that the said family was left entirely without means after the war of 1881.

“7. An affidavit made at the request of the claimant before the consul of the United States in Lima by Maria Fiesta, a married Peruvian, on the 9th of December 1890, in which the former stated that she resided at Melgarejo until the year 1881; that in 1880 she was a friend of the family of John A. Murphy, and that she saw the elegant furniture that said family had brought from Lima; that the affiant went to Lima at the approach of the Chilean forces, and that a short time afterwards Mrs. Murphy and her children followed her, leaving at the estate all they possessed, with the exception of some necessary articles.

"8. Another affidavit, made at the request of the claimant, on the 7th of December 1890, before the secretary of the legation of the United States in Lima by Jacob Backus, a merchant, citizen of the United States, in which he testifies that he has had friendly relations with the claimant's family, and