292 APPENDIX TO COUNTER-CASE OF GREAT BRITAIN. 



ill the original Case, except so far as evidence in rebuttal maybe legiti- 

 mate in the Counter-Case. Should the Arbitrators, in the course of 

 their deliberations, find it necessary to consider the question of Eegula- 

 tions, the nature, extent, and efficiency of the Regulations to be framed 

 must be determined entirely upon the evidence already submitted, since 

 the subject is one upon which the Arbitrators can have no other knowl- 

 edge than that thus afforded. How far and how gravely the Govern- 

 ments are at issue upon this point may be seen by reference to the 

 corres])ondence regarding it between their respective Eepresentatives 

 preceding the celebration of the Arbitration Treaty. Can the United 

 States be reasonably expected to discuss this important question upon 

 a mass of adverse evidence which it has had no chance to meet by counter 

 evidence, and hardly time intelligently to peruse? 



It is further worthy of remark that, by the pioposed 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 completed and delivered within thirty days from the 

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

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

 although a considerable part of the time must necessarily be occupied 

 by Counsel in reachmg 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 mouths previously in the hands of Counsel, if only 

 evidence strictly in rebuttal remains to be dealt with after the Counter- 

 Cases are exchanged, it would be manifestly imijossible, 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 resi)ect of them that 

 would be likely to be useful, within a period so short and so inter- 

 rupted. 



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

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

 United States cannot assent. It would be, in its judgment, such a per- 

 version 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 

 to 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 ex^^ected 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 of 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 of 

 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 inter- 

 posed. It is manifestly contemplated that both parties shall simulta- 

 neously 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 the 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 submitting his own. 



