AWARD OF THE FISHERY COMMISSION. 1531 



have to proceed with our testimony, or make an argument in advance on 

 hypothetical testimony. Therefore, the proposition of the Crown, unless 

 forced upon us, which I have no idea will be done, will be declined by 

 us, and we fall back on our own proposition. I need not remind your 

 honors that it gives the counsel of the Crown the opportunity of declin- 

 ing to make an oral argument; nevertheless 1 think it would be in the 

 interest, I will not say of counsel or of my own country, but of inter- 

 national justice, that they would let us know before we submit our final 

 printed argument, what they propose to say about the facts of the case. 



Mr. THOMSON. A great deal of Mr. Dana's argument, and it really was 

 the chief argument, was not in reply to what I had to say in regard to 

 the motion ; in a great deal of what he said, I agree with him. I depre- 

 cate as he does arguing on hypothetical evidence. Such is not the prac- 

 tice in the United States or in our own courts. Who asks that the Ameri 

 can counsel in this case shall argue on hypothetical evidence ? Who 

 asks that they shall be heard, either orally or on paper, on a mere 

 hypothesis ? Every fact and circumstance material to the case, both on 

 the part of Her Majesty's Government and the United States, I assume, 

 will have been presented before the counsel on the other side close 

 their case. Then the counsel for the United States, as defendants in 

 this case, will make their arguments, either orally or on paper, just as it 

 seems best to them, supporting their own views of the case, and we, as 

 counsel for Great Britain, will present to the court our arguments iu an- 

 swer to the arguments which they have adduced in support of their case. 

 It was perfectly idle for Mr. Dana to have taken up so much time in ar- 

 guing that they would be called on a mere hypothesis. Is it not idle to 

 say to your excellency and honors, that you do not know what the case 

 is about ! Bo we not all know what the points in issue are; do we not 

 all see them ? So well do the learned counsel see them that they abso- 

 lutely declare they do not intend to open the case that it is wholly un- 

 necessary, as the court now understands every single view that is likely 

 to be put forward. So they will understand, at the end of our case, every 

 fact put forward by the British Government. 



The points are salient and plain and are understood thoroughly by 

 the Agents and counsel of Her Majesty and of the United States. How, 

 then, can it be said there is any hypothesis at all ? My learned friend 

 Mr. Dana) says I am asking that an amendment to the rules should be 

 adopted. I am not. So far from that, the United States are coming in 

 at this late stage of the proceedings and asking for an amendment of 

 rules that were made iu their present form, not merely by consent of, 

 but I believe at the instance of the learned Agent of the United States. 

 Can it, then, be said we are asking for any amendment to be made? 

 They are asking as a favor that the court shall lay its hands on its own 

 rules rules made at the instance (and in the form they now are) of the 

 American Agent. They are asking that as a favor, and at the instance 

 of Her Majesty's Government, and with the consent of tho minister of 

 marine, I come forward and say on behalf of the two governments that 

 they are quite willing to so far depart from these rules as to consent to 

 an oral argument if the United States counsel think it is any advan- 

 tage to have one, though the government I represent can see no such 

 advantage. 



I can understand that a jury may be led away from justice by specious 

 arguments, but I apprehend that this tribunal will not be swayed by 

 any such means, and that the epitomized statement of facts given by wit- 

 nesses will have more effect than all the eloquence of the counsel on the 

 other side. If the case is to be decided by the eloquence displayed in 



