76 ORAL ARGUMENT OF JAMES C, CARTER, ESQ. 



Mr. Carter. In the view I take of it, it may, or may not, be that 

 that action was witliout strict authority. Whatever the truth is, how- 

 ever, this must be true — tliat the dii)lomatic representatives of the 

 Governments had come to a formal a«;ieement that this should be done. 

 They had come to an agreement also in writing that this should be 

 done, although that writing was not in a form making it a treaty. 

 That is plain enough. It was highly important that all of this pre- 

 limimxry work should be done as soon as possible. It was necessary 

 in order to carry out the scheme contemi)lated by the treaty. It was 

 all done by the parties in good faith, and I should hope that it would 

 l)e allowed to be considered as having effect according to the intent 

 of tlie parties. I should, indeed, myself be inclined to argue that the 

 ratilications having been exchanged between the Governments with 

 full knowledge that these proceedings had already been had before- 

 hand, and that it was the design of the pending treaty that they should 

 be had, that the ratitications of the treaty would have an eft'ect, as we 

 lawyers say, by rehdion, and go back and make good these prior pro- 

 ceedings which otherwise might have been invalid. 



Senator Morgan. If the learned counsel will allow me, that is pre- 

 cisely the view I take of the matter, that the subsequent ratification of 

 these treaties, whether there are two or whether there is one, relating 

 to the action of the Commissioners authorized b;y that diplomatic corre- 

 spondence, is an adoption of what those Commissioners had done; but 

 that operates upon what they had done, as I conceive, and it did not 

 operate to give them any authoiity in futuro. 



Mr. Carter. Oh no; I should suppose not. But the view which 

 is suggested by the learned Arbitrator is entirely in accordance with 

 my own. 



I now pass to the next matter which, as it seems to me, in the order 

 I have prescribed, it is proper for me to consider. 



This also is a question, somewhat preliminary to the argument of 

 the main questions in controversy, but ui)ou which it seems to me 

 important that I should address a few observations to the Tribunal; 

 and that question is as to the Uud which is to govern it in its deliberations. 



Tliis is a Tribunal composed of the citizens of different nations, part 

 belonging to the nations between whom the controversy subsists, and 

 I)art coming from other nations. They are sitting under no municipal 

 law wlmtever. The authority of the courts of Great Britain, the 

 authority of the courts of the United States, as authority, are as 

 nothing here. This is an international Tribunal. Then, too, there is 

 no intermitional legislature which has adopted any law in relation to 

 these or any other subjects which can be administered or applied. 

 Therefore, in a certain sense, and in the sense in which we speak of 

 law when we are engaged in a controversy before municipal tribunals, 

 there is no settled law at all. Yet we cannot suppose that questions of 

 this sort are to be di.scussed, debated, and determined by this Tribunal, 

 without its being bound by some rule or some system of law. What 

 then is the laic which is to govern us? I supi)Ose I might appeal with 

 entire confidence to the conscience and the immediate conviction of 

 each one of the members of this Tribunal, that the decision of the con- 

 troversy is to be governed hy some rule of right. W^hat that particular 

 rule may be, and where it is to be fV)und, is another question; but the 

 decision is to l)e governed by some rule of right. I heard with infinite 

 pleasure my learned friend, Sir Charles Eussell, when he was address- 

 ing you upon one of the ]n'eliminary questions say that the first five 

 questions mentioned in the treaty were what he might properly enough 



