1526 AWARD OF THE FISHERY COMMISSION. 



Mr DANA Your excellency and your honors : From all the experi- 

 ence I have had in the trial of causes, where there has been examina- 

 tion of witnesses, it appears to me to be the best course to argue the 

 fact* of the rase after the facts have been put in. Such is the practice 

 in the United States, and I presume in Canada. This seems a simple 

 proposition : that the time to argue upon the facts, to affect the minds of 

 those who have to judge and determine, should be when it is fully 

 ascertained what all the evidence is ; and it is always dangerous, ofteu 

 inconvenient, and always illogical to argue upon supposed, assumed r 

 supi>osititious, hypothetical testimony, which may never come before the 



Court. 



I suppose your excellency and your honors understand my objection. 

 It is to a rule which permits that when the plaintiff has put in all his 

 evidence, and the witnesses have been cross-examined, the defendant's 

 counsel may rise and state what he is instructed will be the testimony, 

 what he supposes or assumes will be the testimony on his side, and 

 then to make an argument upon that testimony, assumed and hypotheti- 

 cal as it is, and to contrast it with the testimony of the plaintiff, and 

 deliver his mind fully and finally on the subject. This is dangerous and 

 utterly unsatisfactory. Consequently in the United States, and I pre- 

 sume 'in the Dominion, the argument is made after it is known what the 

 testimony is, because the plaintiffs counsel in an ordinary cause, or the 

 counsel representing the Government here, may rise with full belief that 

 it will be in his power to place the case in a certain position by his tes- 

 timony, but it may turn out that he will be disappointed in his testi- 

 mony, that the witnesses have not said all that he expected, and that 

 the cross-examination reduced or altered the testimony. But there is 

 another reason. When the defendant has put in his entire case there 

 is the right of rebuttal possessed by the plaintiff, and the rebutting tes- 

 timony may produce effects which the defendant's counsel had no reason 

 to anticipate, and which, without directly contradicting his testimony, 

 may place it in a new light. So I think every person will see, and I am 

 quite sure this tribunal will see, it would be wasting time for us to at- 

 tempt to impress by argument, comparison, and illustration, the effect 

 of testimony which has not been put in. Now, when we speak of open- 

 ing the case for the plaintiff or defendant, we do not mean arguing the 

 caHc. On the contrary, an argument is not allowed by our practice in 

 opening a case. All you can ever do in opening a case is to state very 

 generally what kind of testimony you expect to produce, what you think 

 will be the effect of it, and the positions of law to which that evidence 

 is to be applied mere signals of what is expected to be done. If in 

 opening a case counsel attempts to say anything about the evidence 

 put in on the other side, and argues on the character or effect of his own 

 testimony, he is stopped, because he is arguing. 



Now, if I recollect the rules of the Commission, there is a provision, 

 that the Uritish counsel should argue the case upon supposed testi- 

 mony, but that they should open their case and put iu their testimony; 

 .hat we should argue upon their testimony and our supposed 

 te*Uroooy, but that we should open our case bv merely explaining what 

 leuce la expected, and when all the testimony should be in, rebutting 

 my included, then there was to be a complete printed argument 

 the testimony, the points of law, aud everything connected with the 

 rbe learned counsel for the Crown thought, wisely, no doubt, 

 was not worth while to have an opening at all, and they did not 

 Now, your honors might have said, " We wish you would 

 our case, because we will better understand the testimony as it 



