IGl 



proceed with our teiitiinony until it is complcteci; the rebuttal testimonv will then 

 he put in l)v the British counsel, and it is not until the rebuttal testimony is com- 



Rletcd that this tribunal can be supposed to i<no\v on what facts it is to proceed. 

 Tow, do your Honours think it is desirable to have an ar^^ument before you know 

 on what Facts you are to proceed? All the facts having been placed before the 

 tribunal, then is the time to argue the question. 



It may be said by tiie learned counsel that what I have so far stated is 

 unnecessary, because they don't mean to compel us to open. But I tiiink your 

 Honours will see it is well to understand in advance what is meant by an opening; 

 and an argument. When the whole of the evidence is before the tribunal, then 

 comes the question— in what form can the counsel for the respective Governments 

 most benolicially to themselves, to their opponents, and — what is most important — to 

 the tril)unal that has the weighty responsibility of determining the case, present all 

 the facts and the principles of law and policy to which they are applicable ? What- 

 ever nicde will do that best is the one we ought to adopt. We, the Agent of the 

 United States, and the two United States' counsel, have made up our minds that it 

 will 1)0 more satisfactory to the tribunal that has the j.:dgMient of the case, quite as 

 fair to the opposite side, much more satisfactory to us, and more just to the United 

 States, that the course which we propose should be taken. The only question is 

 whether the course we propose should be adopted, or the course proposed by the 

 counsel for the Crown in amendment thereto. They seem to see that after the 

 examination of witnesses and reading of affidavits, extending over a long period, an 

 oral arjJiiinciit is advantageous ; at all events they do not object to our making 

 one. It is advantageous because it can be done always with more effect. 1 do not 

 mean nntre clibct as respects the person whc delivers the argument, but more effect 

 on tiu? coiii.se of justice, tiian a printed argument. When an oral argument is 

 delivcicil, iinv member of the Court who thinks the counsel is passing from a point 

 witlioiil making it perfectly clear, can ask for an explanation. We desire that this 

 tribunal shall have an opportunity to ask, at any time during the argument, for an 

 explanation, if any explanation is needed. It is, moreover, a hardship to those who 

 hand in a piinkMl argument to be left in uncertainty as to whether further expla- 

 nations may ho necessary. I therefore think the experience of all engaged in 

 ascortaiiiini;- truth by means of witnesses and arguments, shows that there should 

 be an oral argument, if possible, on the testimony and such of the principles of law 

 as are to be aifected by it. 



In this case it seems to be thought expedient also to have a printed argument. 

 Perhaps it may he ; but if it should be given up by both sides we do not object. 

 If there is an oral argument only, and no printed argument, we shall be more 

 careful in our oral argument to examine into all questions of law. If there is to be 

 also a written argument, the oral argument would be confined more to the facts. 

 Now, your Honours, our suggestion is that we shall, as the defendant always does, 

 when the evidence closes, argue the facts with such reference to principles as may 

 be thought expedient. When that is done, it is the plaintiff's time to reply orally. 

 The briefs are a different thing, the printed arguments are a different thing. In a 

 great case like this, a question between the two greatest maritime Powers of 

 the world, and entrusted to three gentlemen with absolute power over it, whatever 

 will best tend to enable each side to understand the other fully, at the time when it 

 is necessary to understand them, is for the benefit of justice. When we have made 

 our oral argument, the counsel for the Crown will make their oral argument. If 

 they choose to waive the privilege of making that oral argument, if they think their 

 policy will he best subserved by making neither an opening nor a closing oral 

 argument, which we cannot compel them to do, and by hearing all we can possibly 

 sav belbre their mouths are opened, and to have their only speeches made after our 

 mouths are closed — if that is their view of policy, I should like to know whether the 

 Agent of the Crown here tacitly gives his consent to such a course of procedure; 

 that is, that the American side shall be obliged to put in both its oral argument 

 and its printed argument, when the other side has put in nothing, and then have an 

 opportunity to close upon us without our knowing from their lips anything what- 

 ever. We have had what is called the British Case, and what is called the American 

 Case. But they are simply in the nature of pleadings. They do not go into the 

 testimony, ti'-y do not argue the facts of the testimony, they do not state what the 

 testimony is to be; they are of a general character, and in no sense arguments. 

 1 think this tribunal will agree with me on that point. 



in regard to the amendment proposed by the other side, by which we will be 



