159 



refers to the chaiactor of ilu- case, and taking- into consideration not only tlie 

 character of tlie case, hut of the parties, of the Court hcfore which we are, 1 may 

 even venture to say of the counsel engaged, I do not think we ought to proceed in 

 the spirit of a Nisi Priiis trial. Your judgment certainly cannot be prejudiced by 

 a full and frank discussion. Our purpose is to save time and labour. We |)ropose 

 orally to discuss this subject hclbre you with a frankness and freedom that we 

 cannot do in writing, and then to put in a printed summary, giving counsel on the 

 other side the right to put in tiie final one. Surely my friend docs not want ns to 

 ad()pt his suggestion, because lie wants to say something at the last moment to 

 which we will not have opportunity to reply. There tvuinot be anytiiing of a 

 mystery in an argument like this. We all liow understand wliat are the issues 

 which are before us. We only want to discuss tliem with jierfect frankness and 

 fulness, so that everything that is to bo s-aid on the case may be said. I want this 

 case to be so argued", both in spirit and fact, that wliatever the award may be, and 

 whoever is called upon to sulimit to an adverse derision, they will be satisfied, 

 having olotained the est jiossihle hearing on the subject. I "want to secure no 

 advantage over my friends on the other side, and I do not believe that they desire 

 to have any advantage over ns ; if they will allow me to borrow an illustration from 

 the language of their witness, we do" not wish to " lee-bow " them. But I think 

 that my learned friend is sacridcing himself to a sort of technical superstition for 

 the word " reply." In this case there is nothing mvsterious, and no necessity 

 exists in regard to having the last word. We are willing to lay our whole argu- 

 ment before the Commission, and then to let them replv to it, if they so wish, but if 

 they do not choose to do it, we do not intend to compel tliem. to reply ; and it is 

 perfectly in their power to effect themselves what they jiropose. by declining to 

 reply to our oral argument, and confining themselves to their final argument. I say 

 frankly, I would regret such a decision very much. We wish to know their ease as 

 they regard it, and without depriving them at all of their right to reply, to have a 

 frank, full, straightforward, and manly discussion of the whole (uiestion. I have 

 always thought that the fairest manner for submitting a case is followed before our 

 Supreme Court, lioth parties put in their printed ar^'uments. bringing ttiem 

 within the common knowledge of each party Ijel'ore the Court, and then they arc 

 allowed to comment on these arguments as they please. 



iU/'. Thomson. — I agree with .Mr. Trescot that this cause has not to be tried as 

 one at Nisi Prius; we do not want Nisi Prius rule.-; here, but we want the broad 

 principle understood, that Great Britain in this ease is the plaintiff, and as such she is 

 first to be heard, and last to be heard. A great advantage is obtained by the United 

 States by hearing our case first, and for this very simple reason, fiuring the whole 

 time our evidence is being given before this Court, they can be preparing their 

 witnesses to meet it. 



Tiiere is always this advantage given to the defendant in every case. He has 

 the privilege of hearing the plaintilf's testimony, and during the time the testimony 

 is l)eing given, he has the o|)portunity of preparing his answer. On the other hand, 

 when the plaintiff comes to close tiie case, if there lie an aiivantage in having the 

 last woril, the plaintiff has it. So the advantages ;\re about balanced. A " frank " 

 discussion, undertheproposition submittedbvthecounsel forthe United States, simplv 

 means that the United States would get entirely the advantage iu this cause. 

 There is not the slightest desire on tlie part of the firitish Government, or on the 

 part of the Canadian Covernnient, represented here by the Minister of Marine, that 

 one single fact should be kept back or forced out as against the United States, on 

 the contrary that they shall have the fullest opportunity of being heard, but we 

 submit that not only the rules solenudy adopted by this Tribunal, but the rules 

 which govern the trial of ordinarv causes should not be departed from. We have 

 given way a great deal, when we arc willing to allow our learned friends who 

 represent the United States, to take the course they propose to this extent: that 

 they shall make their oral speeches if they choose to do so, and if they choose, in 

 addition, to put in a written argument, well and good, but they must do it at once, 

 and that, if we please, we shall answer their written argument and speeches, orally, 

 and by written i.rgument, or by one of those modes only. We ought not to be 

 asked to yiehl more. 



\fr. hnmt. — Your Excellency and your Honours : From all the experience I have 

 had in the trial of causes, where there has been examination of witnesses, it appf>nrs 

 to me to be the best course to argue the facts of the case after the facts have been put 

 |280| Z 2 



