142 DIPLOMATIC CORRESPONDENCE, 



their respective representatives preceding the celebration of the Arbi- 

 tration Treaty. Can the United States be reasonably expected to dis- 

 cuss this important question upon a mass of adverse evidence which 

 it has had no chance to meet by counter evidence and hardly time in- 

 telligently to peruse"? 



It is further worthy of remark that, by the proposed method of mak- 

 ing up the Case, the United States Government will not only be deprived 

 of the means of reply to the British evidence by proof, but also of the 

 opportunity adequately to discuss it in argument. It will be observed 

 from the provisions of the Treaty that the written argument upon the 

 whole case must be complete and delivered within thirty days from the 

 reception of the Counter Cases. During this time the argument on the 

 American side must be prepared, printed, and sent across the Atlantic, 

 although a considerable part of the time must necessarily be occupied 

 by counsel in reaching Paris from the United States. While this may 

 be possible, though not easy, in respect to so much of the Case as has 

 been for several months previously in the hands of counsel, if only evi- 

 dence strictly in rebuttal remains to be dealt with after the Counter 

 Cases are exchanged, it would be manifestly impossible, if the bulk and 

 strength of the British proofs are to be presented for the first time in 

 the Counter Case, to prepare any argument in respect of them that 

 would be likely to be useful within a period so short and so interrupted. 



To a construction of the terms of the Treaty which leads to results 

 so grossly unjust and so gravely prejudicial, the Government of the 

 United States can not assent. It would be, in its judgment, such a 

 perversion of the letter and such a violation of the spirit of the Treaty 

 as would threaten to defeat its objects and be fatal to its usefulness. 

 It may safely be asserted that in no judicial proceeding ever invented 

 for the determination of disputed facts was it allowed that one party 

 should be at liberty to introduce his whole case in such a manner as to 

 give his adversary no opportunity to present evidence in reply to it, 

 although afforded on his own side full means of replying to his adver- 

 sary's testimony. Such a method of trial could not be expected to 

 result in a just decision. Had such a proposal been made in the present 

 case by either of the high contracting parties, when the provisions ol 

 the Treaty were being framed, it would have been at once rejected, not 

 only as inadmissible, but as unworthy of the Government presenting it. 



The true intent of the terms of the Treaty in respect to the mode oi 

 trial is, as the Government of the United .States respectfully insists, 

 obvious and clear. But one Case and one Counter Case are provided 

 for on each side. "No issue is previously formed, and no pleadings in- 

 terposed. It is manifestly contemplated that both parties shall simul- 

 taneously submit to the Arbitrators and to each other, in the Case which 

 is to be exchanged within four months from the ratification of the 

 Treaty, their propositions, their claims, and their evidence, upon all 

 points in dispute. Neither goes forward, as in an action at law, neither 

 is entitled to wait until he receives his adversary's case before submit- 

 ting his own. Both understand by long correspondence and negotia- 

 tion what the controversy is. Then to each is afforded the opportunity 

 to reply to the Case on the other side in the Counter Case, which is to 

 be exchanged within three months after the reception of the Case. The 

 language of Article IV is upon this point decisive. No further oppor- 

 tunity of submitting evidence and no second hearing are provided for 

 respecting regulations or any other matter. 



To the Counter Case no reply is provided for, except in argument, for 

 the plain reason that it is supposed to contain no evidence except that 

 in rebuttal. This method is fair to both sides, and places both on an 



