ARGUMENT OF MR. ROOT 365 



Senator Root: There have been a number of papers produced 

 in response to expressions from the Tribunal, and there have been 

 some expressions regarding papers which have not been produced. 

 I have understood that that was all in accordance with Article 68 

 of the General Hague Convention : 



"The Tribunal is free to take into consideration new papers or docu- 

 ments to which its attention may be drawn by the agents or counsel of the 

 parties. 



"In this case, the Tribunal has the right to require the production of 

 these papers or documents, but is obHged to make them known to the oppo- 

 site party." 



I was about to say that we have, in Mr. Field's Code of Proce- 

 dure, in the State of New York, a provision that a plaintiff or com- 

 plainant who conceives that the answer of the defendant is frivolous 

 may move to strike out the answer; and if it is stricken out, the 

 result is that he is entitled to take his judgment pro confesso. I 

 remember many years ago a motion being made of that character 

 before a very experienced judge, and counsel making the motion 

 began to argue upon the frivolousness of the answer. The judge 

 stopped him and said: "If this requires argument, the answer is not 

 frivolous, and your motion is denied." With that view I shall say 

 nothing more whatever about Question 6. 



As to Question 7 : 



"Are the inhabitants of the United States whose vessels resort to the 

 treaty coasts for the purpose of exercising the hberties referred to in Article I 

 of the treaty of 1818 entitled to have for those vessels, when duly authorized 

 by the United States in that behalf, the commercial privileges on the treaty 

 coasts accorded by agreement or otherwise to United States trading vessels 

 generally?" 



I quite agree with an observation made the other day from the 

 bench that these questions are all questions of both parties. Both 

 parties have united in framing them, and presenting them to the 

 Court, and both parties are responsible for them. Nevertheless, 

 when a difference arises as to the construction in two ways of a 

 question, it may be of some advantage to the Tribunal, in endeavor- 

 ing to put itself in the attitude of the parties who framed the question 

 at the time when they framed it, to know what the origin of the ques- 

 tion was, from what element of controversy the question came. For 



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