2968 AWARD OF THE FISHERY COMMISSION. 



HOD. Mr. KELLOGO asked what .was the motion in regard to the 

 paper. 



Mr. THOMSON said he understood Mr. Foster was offering it in evi- 

 dence. 



Mr. DANA said he did not so understand it. A question arose as to 

 whether the paper was or was not in evidence. The Secretary thought 

 it was not put in, and the Agent of the United States thought it was 

 in. If it was in, no motion could be made for withdrawing it ; if it was 

 not in, the question was not whether they should now put it in, but 

 whether it was not an error that it was not in. Their position was that 

 the paper went into the case from the nature of the cross-examination, 

 and if there was a mistake made in not handing the paper to the Sec- 

 retary, or in the Secretary not understanding it was put in, they could 

 rectify it now, not as testimony offered by one side or the other side now, 

 but as something that heretofore should have been in the case. There 

 was DO very great difference in the common law as administered in the 

 United States, Great Britain, and the colonies. It was all founded on 

 reason. Suppose a cross-examining counsel asks a witness whether he 

 wrote a certain paper, then on that paper being produced by him, not 

 as evidence on his own side, but to contradict or impeach the character 

 of the witness, or to diminish the weight of his testimony, and the pa- 

 per is made the subject-matter of cross-examination, that cross-exniuin- 

 .ation goes on the record, if the proceeding is by record, and passes into 

 the hands of the jury, if the proceeding is at common law, and an es- 

 sential part, in order that the cross-examination may be understood, is 

 the paper. It counsel produced a paper and cross-examined a witness 

 upon it, and had the cross-examination entered on the record, and then 

 thought it would suit him better to have the paper on which the cross- 

 examination was based in his pocket and put it there, in what position 

 would the witness stand on the record ! Any judge, reading the cross- 

 examination, would say that he could not understand the witness or 

 form an opinion as to the value of his testimony unless he saw the 

 paper. In such cases it is considered an essential part of the cross-ex- 

 amination, and counsel cannot withdraw it and put it in his pocket. 

 The jury has the right, in order to understand the testimony of the wit- 

 ness, to see the paper on which the questions were founded. In the pres- 

 ent case, Mr. Foster had read the cross examination of the witness, and 

 the paper produced for the purpose of his cross-examination. Their posi- 

 tion simply was that the paper was an essential part of the cross-exam- 

 ination, or was a sufficient part of the cross examination to authorize 

 either party who desired it to put it into the case that the cross examin- 

 ation might be understood. The party who produced it might put it in, 

 not as original testimony to prove his case, but as something which, un- 

 der the oral statements of the witness, affects the witness. If the state- 

 ments of the witness went into the record without the paper on which 

 he was cross-examined, he was affected unfairly. The court would, 

 no doubt, declare that as counsel had seen fit to cross-examine the wit- 

 ness on the paper, in order that everything may be understood and 

 justice done to the witness, the paper must go in with the cross examin- 

 ation. Mr. Foster had supposed the paper was already in the case; he 

 (Mr. Dana) could not say he did so, for he had forgotten the transac- 

 tion. He thought Mr. Thomson had referred to some other point, for it 

 could not be held that counsel could cross-examine a witness from a 

 paper, and say to the court and opposing counsel, " I insist on the an- 

 swers of the witness going down, but I also insist upon putting the 

 paper into the fire." 



Mr. THOMSON said that no witness could be cross-examined on a paper 





