the oral arguments, then I admit that Her Majesty's Government would stand at great disadvantage, but I do not think that eloquence will have a feather's weight in this case. I desire the court to understand distinctly that this is a motion made by the counsel of the United States to have the rules altered, and I come forward, for Her Majesty's Agent and the minister of marine, to state we are willing it shall be done as they wish, provided always they don't, in getting an inch, take an ell. They will have, if they think it is an advantage, the right to make a closing speech, but must immediately afterwards put in their closing printed argument. They are simply to support their own case. We are, then, simply called on to answer the case and argument in support of the speech they put forward, and nothing else. Not one principle of ordinary justice will be infringed or departed from. In conclusion, I must confess I cannot help feeling a little surprised at the manner in which Mr. Dana submitted the motion, for he put it in an almost threatening manner to the tribunal, that if it was not acceded to, the counsel for the United States would withdraw the proposition altogether. That is not the usual mode in which a favor is asked by counsel before a tribunal.

Mr. FOSTER. I think I am entitled to a few words in reply. If the learned counsel (Mr. Thomson) had been present yesterday afternoon when I made the explanation which accompanied Mr. Trescot's motion, I think he would not have made the observations which he has made. This is what I said: When I came here I found myself met suddenly by five of the most eminent gentlemen who could be selected from the five maritime provinces, and, contrary to the expectations of myself and my government, they were to be admitted to take charge of this case, and they were assisted by a very eminent lawyer, now minister of marine, who is spoken of by counsel as having largely the conduct of this case. I alone, a stranger in a strange land, baving no reason to suppose counsel would be brought here to assist me, found myself, I say, by the unexpected decision of the Commissioners, placed in such a position that, instead of meeting the British Agent, I had to meet the British Agent, the minister of marine, and five counsel. Now, to avoid five closing oral arguments against one, I was well content with the original arrangement of the rules. But the rules provided that they might be changed if in the course of proceedings the Commissioners saw fit to alter them; and as to our application being an application for a favor either from our opponents or the Commissioners, it is no such thing. It is an application to your sense of justice. Before a judicial tribunal there are no such things as favors. Decisions go upon the ground of right and justice, and especially so in regard to a treaty. Under the oath which the Commissioners have taken, equity and justice are made the standard of all their proceedings. Now, how are we placed? We have, in the first place, a much greater mass of testimony than I anticipated, or any of you anticipated, I presume. In the next place, we are on the eve of a much greater conflict of testimony than I anticipated; we see that very plainly. Then again, from prudential considerations, counsel on the other side saw fit not to open their case. It was a grievous disappointment to me; I could not help myself, as I saw at the time, and so said nothing. But it was a great disappointment to find they did not think fit in their opening to explain the views they intended to enunciate. As the testimony has gone forward for more than a month, it has become obvious to all of us that in a printed argument, prepared within ten days' time, and compressed within the necessary limits of a printed argument, we cannot examine this testimony, and cannot render the

tribunal the assistance they have a right to expect from counsel. It is, therefore, proposed that, instead of making opening oral arguments, which obviously would be quite inadequate, we should have the oppor tunity of making closing oral arguments, to be replied to by the British counsel, and then that the printed arguments should follow, giving them the reply then also.

Whatever we do, we are willing they should have the reply-the reply to our speeches, the reply to our writings. Is it possible that any arrangment could be fairer than that, or any arrangement more calculated to render your honors assistance in coming to a just and equitable conclusion? Now, I know my friend, the British Agent, does not mean to deal with this case so that batteries can be unmasked upon us at the last moment. I know the Commissioners will not allow such a course to be taken. Unless that is to be done, it is quite impossible that any unfair advantage would result to us, or that the British counsel would be in the least deprived of their admitted right to reply, which always belongs to the party on whom lies the burden of proof, by the course which we propose to follow. What we do desire is, that we should have the chance to explain our views fully before your honors orally; that we should then hear from counsel on the other side; and then that the printed summaries, which are to be placed in your hands to assist you, should be left with you when you go to make up your minds on this case. What do they lose by it? What can they lose by it? By omitting to make any oral arguments, as Mr. Dana has said, they can get the last word and unmask their batteries; but if printed arguments are to be made at all, does not common sense require that the printed arguments on both sides should follow the oral arguments on both sides? I put it to each member of the Commission, I put it my friend the British Agent, is not that the course which every human being knows will be most likely to lead to a thoroughly intelligent and just decision? If it was a matter of surprise; if we were before a jury, and a poor one; if it was one of those nisi prius trials, which we are sometimes concerned in, I could understand the policy of trying to have both oral and written arguments made against us after our mouths are closed forever; but I cannot understand it now. If the matter should be left as they desire to have it left, I venture to predict that either on our application, or more likely at your own request, we shall be called upon to reargue this case after the original arguments are supposed to be closed, for you will find in their final arguments, oral and written, matters which you will think common justice and fair play, for which Englishmen are said to be distinguished all the world over, require that we should have an opportunity to answer. They may close upon us orally, they may close upon us in writing, but as for their possessing the privilege of keeping their policy concealed till the last moment, I do not believe they really want it; I do not believe my friend the British Agent wants it; and if he does not want it, there is no conceivable objection to the adoption of the course we propose.

Mr. DOUTRE. May it please your excellency and your honors: My learned friend, Mr. Dana, has spoken of the usages of the courts in different countries, and with those observations we might have agreed, until he came to claim a most extraordinary thing, and one which I am sure our learned and experienced adversaries never heard of being conceded in any country in the world-that the defendant should have the reply. My conviction is that there is no danger in challenging our friends to name any court in the world where the defendant has the right to reply. I think we would be far below the standard given to us in the compli

ments of our learned friends if we did not see very clearly the course which they propose to follow. They would have the means of meeting everything we could state; and anything we might state after that, I don't conceive what it could amount to. It may strike persons not familiar with courts of justice that it is strange we should insist on having the last words, and our friends magnify that extraordinary desire on our part to point out that we have not to deal here with a jury, which might be misled by the elegance of some skillful lawyer, but that we have to deal with a far higher order of judges. This I admit. But I would like my learned friends to explain the strenuous efforts they are making to get that reply. It is nothing but such a demand that my learned friends are putting forward. Our American friends have been so extraordinarily lucky in all their international difficulties that they have arrived at the last degree of daring. We are living in hope that some time or other the balance in connection with international difficulties between England and the United States will turn on the right side. I do not know if we are in the way of reaching such fortunate result, but we live in that hope. Our learned friends on the other side pretend that they have been placed at a disadvantage from the fact that we did

not, as they say, open our case. We did open our case. We opened through Mr. Thomson, who stated to the Commission that all he had to say was printed, cut, and dried, and ready to be read; that it set out the case in better language than he could have used in a speech, and that there was nothing to add to or take from it. I think this was the best opening that could have been made, otherwise our learned friends might have complained and said they expected to have obtained more detailed information about the case. But they felt it was a saving of time, and they have expressed the opinion to-day that it would have served no real interest to have gone any further than Mr. Thomson proceeded. Mr. Dana has complained that the brief which has been filed by the American agent has not yet received an answer. I think we are not bound to answer the brief. If we do so it will be merely out of courtesy to our friends. Our answer might come in our final written argument, and there is no reason whatever, and no right on the part of the counsel of the United States to demand to have it sooner than that. If we choose not to answer it even then, I question if we can be required to answer it; so that if we give an answer to their brief it will be a mere matter of courtesy, because we are not bound to do so. Mr. DANA. Do we understand there is to be no answer?

Mr. DOUTRE. I do not say so. While I think we will file an answer, it will be done out of courtesy to the counsel for the United States. We have been told we are keeping masked batteries for the last moment. I would like to know where we would find ammunition to serve those batteries. Is not all our case in the documents filed, in the depositions of the witnesses, and in the affidavits? Can we bring anything more to bear? They are our ammunition; they are all here; our hands are empty, and we have no more to serve any masked batteries. The argument may be very plausible, that in a large question, involving two great countries, it is necessary that everything should be done which tends to enlighten the minds of the judges so that a just result may be secured; but that argument, your honors will understand, would be as good in every court in the world to obtain for the defendant the last words and change all the rules of judicial tribunals. Hon. Mr. Foster says he has been induced to agree to the demand now under discussion because when he saw he was going to be met, contrary to the expectation of his government, by five gentlemen, whose talents he magnifies for the oc

casion, because it suits the purpose he has in view, he thought he would be under a disadvantage if the rule in question should be maintained. If we go back to the time when the rule was adopted it will be recollected that the five lawyers on behalf of the British case were then be. fore the Commission. If they were not admitted, it was known for several weeks that the British Agent intended to be assisted by counsel; so the fact was fully before every one of us when the rules were adopted. Now we are asked to change these rules. So long as it is a matter of convenience and pure courtesy to the United States, we have no difficulty in acceding to their request, and in doing this we are acting within the terms of the written document under discussion, which says:

As we understand the wish of both governments to be that the whole discussion should be as frank and full as possible, it has occurred to us that you might be disposed to allow us to adopt such an arrangement as would, in our judgment, best enable us to lay before you a complete presentment of the opinions of the government we represent, and we feel more assured in that opinion as this privilege deprives counsel on the other side of no advantage which they now possess, for besides the right to reply to the printed argument, which they now have, we would, of course, expect that they would also be allowed the right of oral reply if they desired to exercise it.

So far this is perfectly correct, but it does not show their hands to us at all. We do not see their real object, for there is a masked battery. Apparently a very simple alteration of the rule is asked for, and our friend Mr. Trescot thought yesterday that it was so unobjectionable that it would be immediately acceded to. Well, if this paper had stated the whole truth, and did not cover anything which is not mentioned, we should have accepted it immediately, as has already been stated by my brother counsel. But we suspected that this slight alteration conceded something, and we were not mistaken.

Mr. TRESCOT. What is it?

Mr. DOUTRE. I will explain it, certainly. Mr. Dana says, "You have a reply." Certainly we have the reply, but we might reply in eight months from this, and it would be just as good. Here is the practical result: if the proposition, which is not included in this paper, but which has been admitted verbally, were accepted, our learned friends would develop their case orally, and we would answer orally. They would then come with their printed statement. Now, is not this the reply? What would remain for us to say? What would be the value of that printed document which we could give afterward? What new aspect or exposé of our case could it contain? None whatever, so that virtually it gives our friends the reply, and that is the reason why they are insisting so strongly upon the change in the rule.

Mr. DANA. You take the objection that under our proposed rule you would not be able to put in anything new?

Mr. WEATHERBE. All you asked for was to substitute an oral for the written argument?

Mr. TRESCOT suggests that it would be better if he were now allowed to read the amendment which he proposes to submit.

Mr. WEATHERBE. It would have been better that we should have had it last evening.

Mr. TRESCOT. It is entirely in accordance with the paper which I read last evening.

SIR ALEXANDER GALT. We should have had the precise proposed alteration of the rule before us before hearing this argument.

Mr. TRESCOT. It is precisely the same as what was laid before the Commission. I will read it. The third rule reads this way:

The evidence brought forward in support of the British case must be closed within a period of six weeks after the case shall have been opened by the British counsel,

unless a further time shall be allowed by the Commissioners on application. The evidence brought forward in support of the United States counter case must be closed within a similar period after the opening of the United States case in answer, unless a further time be allowed by the Commissioners on application. But as soon as the evidence in support of the British case is closed that in support of the United States shall be commenced, and as soon as that is closed the evidence in reply shall be commenced. After which arguments shall be delivered on the part of the United States in writing within a perid of ten days, unless a farther time be allowed by the Commissioners on application, and arguments in closing on the British side shall be delivered in writing within a further period of ten days, unless a further time be allowed by the Commissioners on application. Then the case on either side shall be considered finally closed, unless the Commissioners shall direct further argument upon special points, the British Government having in such case the right of general reply, and the Commissioners shall at once proceed to consider their award. The periods thus allowed for hearing the evidence shall be without counting any days of adjournment that may be ordered by the Commissioners.

The amendment which we would move would be to insert after the words "the evidence in reply shall be commenced," the following: "When the whole evidence is concluded either side may, if desirous of doing so, address the Commission orally, the British Government having the right of reply."

Mr. DOUTRE. I understand this, but it is not the motion under discussion. I have read the principal part of that motion, and I say this, that, if we take this to mean what our friends had in their minds when they made their application, the only alteration that this rule would require would be this, "after which argument shall be delivered on the part of the United States, orally or in writing, within a period of ten days, unless further time be allowed by the Commissioners on application, and arguments in closing the British case shall be," etc. Mr. TRESCOT. That is what Mr. Thomson proposes.

Mr. DOUTRE. Exactly; and this does not give any more. But there was in their minds more than this contains. We have it in their verbal explanations.

Mr. TRESCOT. So far as the construction of language goes, I have no objection to your putting any construction you please or drawing any inferences you choose from the language of the application that was made last night. But that the intention of that application and of the amendment we propose to-day were one and the same thing, there can be no doubt. When we filed that paper what was wanted was distinctly known, otherwise it would have been bad faith on our part, as we would have been asking for one thing and intending to get another. There was no possible doubt what the object of this was, as is evident from the fact Mr. Thomson suggested an amendment himself to counteract our object, showing that he had clearly in mind what object we had in view.

Mr. DOUTRE. My answer is that by reading this we suspected the object of this paper was something more than to change the time when our learned friends should address the Commission. It only meant that instead of doing so before adducing their evidence they would do so after the whole of the evidence had been brought in. The object that our friends have in view is very clear in the paper which has been read here to-day by Mr. Trescot, but it is not so in the paper which was presented yesterday, and we suspected this was an indirect way of securing that which is not known in any court in the civilized world, namely, that the defendants should have the reply. They would have twice the opportunity of discussing the matter, when they have no right to be heard more than once. Now, why is the reply given to the plaintiffs? Because up to that moment the position of the defendants is far more privileged. They have all the evidence of the plaintiffs in their hands,