ARGUMENTS ON PRELIMINARY MOTIONS. 131 



I 'svas poiuting oiTt tliat that was a necessary incident, almost indeed a 

 neces^sary incident, to the proceedings of a Tiibnnal constitnted as 

 this is; but 1 was making no complaint of its appearing there, in any 

 sense. 



The President. — We perfectly understood you. 



Mr. Carter. — Ko comjdaint; but still my learned friend insisted 

 with great emphasis that the course thus pursued by the United States 

 was not justified by their interpretation of the Treaty. 



Sir Charles Russell. — Oh ! no. 



Mr. Carter, — I understood him to say that. If I am mistaken 

 about that, then I will pass by the observation. 



Sir Charles Russell. — It was addressed solely to the argument 

 of my learned friend, Mr. Phelps, who was complaining of the injustice 

 of certain evidence being put forward which the other side had not had 

 an opportunity of answering. My reply was that that was a necessary 

 incident of this case, that they had included intbeir Counter Case (and 

 I was not complaining of it or making objection to it,) matter which we 

 had no opi)ortunity to answer. 



Mr. Carter. — Well, I must have a word to say in regard to the 

 observation just made, that the presentation of evidence without giving 

 the other party an opportunity to reply to it is a necessary incident of 

 this controversy. I have a word to say upon that point, if any argu- 

 ment is made upon that. To a certain extent, and to a very small and 

 insignificant extent, it is a necessary incident of this controversy; but 

 in regard to the main and principal features of this controversy, it is 

 not, 1 maj^ be permitted to say. 



In reference to all the main questions in dispute here, if the parties 

 had fully, fairly, faithfully i^resented the allegations upon which they 

 relied, as the Treaty designed that they should, in their original Cases, 

 there would have been full complete and substantial opportunity by 

 each party to reply. Of course, there is no opportunity here to reply 

 to replying evidence. The course of pleading must stop somewhere, and 

 according to the provisions of this Treaty it stops with the Counter 

 Case. There is no opportunity to reply to that, but the provision of the 

 Treaty supposed that there would be no new matter inserted in the 

 Counter Cases; if the provisions of the Treaty were faithfully followed, 

 there would be no new matter inserted in the Counter Cases, and no 

 occasion, therefore, to reply. 



I do not mean that it is not a necessary incident of that course of pro- 

 cedure that there might be put into the Counter Case, of one of the par- 

 ties or of the other, some matter as to which the other side might very 

 properly desire to add further explanation. That is indeed a necessary 

 incident, but it is too small and too insignificant for notice or attention, 

 in view of the tact that the great purpose of reply, the great purpose of 

 giving each of the parties an opi)ortunity to answer the i^roofs and alle- 

 gations of the other, is provided for by the Treaty, and that the want 

 of an opportunity to further rei)]y is not in any material or substantial 

 sense a necessary incident of the manner in which the controversy is 

 provided to be conducted by the terms of the Treaty itself. 



I wish to say in reference to these further rei)orts of ours, which are 

 not complained of: we inserted them in the Counter Case? Why? We 

 could not have inserted them in the original Case. They were investi- 

 gations in respect to matters which arose after the original Case was 

 prepared, or while it was being prepared, and therefore could not be 

 inserted in it. We therefore did not withhold anything. The matter 

 did not exist untbl after the preparation of the original Case, and there- 



