AWARD OF THE FISHERY COMMISSION. 2969 



in the sense referred to by Mr. Dana, except in regard to a paper of 

 which he had personally given evidence, or else in regard to a paper 

 signed by himself. It was impossible for a witness to be cross-examined 

 on a paper, except under such circumstances either as regards a paper 

 about which he had volunteered to give evidence and undertaken to hold 

 himself forth as having a personal knowledge of it, or in a case where a 

 witness has written a paper and holds himself responsible for the con- 

 tents. When counsel holds up a paper, which it is not pretended is an 

 official return, and asks questions from it, how does that prejudice the 

 witness T He has the privilege of stating whether certain things are 

 true or false, and his answers are recorded. Counsel might have all the 

 names and information down in his brief, and how was the witness in- 

 jured by such a course? It had been said that the court could not under- 

 stand the testimony unless the paper was put in. The testimony stood 

 fairly enough. Mr. Davies had read what he pleased from the paper 

 and asked the witness if such was correct or incorrect ; that was all. 

 Whatever was said by Mr. Davies, and the answers of the witness to 

 the question, were taken down. He did not wish to throw any difficulty 

 in the way, and was quite prepared to discuss the question as if it had 

 arisen at the time of the cross-examination. If the American counsel 

 had the right on that day to take'the paper out of the hands of Mr. 

 Davies and put it iu evidence, they had the right now. Mr. Davies 

 handed the paper over at the request of Mr. Foster, but he was not 

 bound to do so unless he pleased. Mr. Foster could not have put in the 

 paper unless Mr. Davies had been pleased to give it to him, and no court 

 would have obliged hirr to do so. That paper having been handed over 

 to Mr. Foster as a matter of courtesy, if he chose to otter it in evidence, 

 they did not object, but he could not put it in as a matter of right, and 

 make it part of the British evidence. If Mr. Foster ottered it in evi- 

 dence, they would treat it as American evidence wholly. 



Mr. DANA said that in Massachusetts, and he thought the United 

 States generally, counsel were not permitted to cross examine a witness 

 from a paper. 



Hon. Mr. KELLOGG said he recollected the circumstance very well, 

 and he had understood from what had then passed between Mr. Davies 

 and Mr. Foster, as to whether the paper should be admitted or not, that 

 it was given to Mr. Foster, as he supposed, iu the view of having it put 

 in; he did not, however, know what the intention was. 



Mr. FOSTER said that a large part of the paper was read in evidence. 



SIR ALEXANDER GALT inquired what was the value of the return. 



Mr. FOSTER said that if the counsel had been pleased to cross exam- 

 ine on a chapter out of the book of Job, after he had done, he (Mr. Fos- 

 ter) would have been entitled to have that chapter placed before the 

 Commission, as the basis of his cross examination. Mr. Thomson had 

 said that they could not cross-examine on a paper in that way, but the 

 answer to this was, that the counsel had done this; and this being the 

 case, how in the world could he be deprived of the benefit of it ? 



He had supposed it was understood, that this paper was entered to be 

 printed with other matter; and wanting a copy of it, he had obtained 

 this from the Secretary that night. Certainly, he had supposed that 

 the paper was in, else he would certainly have renewed the controversy 

 ; the next morning. Having deliberately cross-examined on this paper 

 with the view of forcing the witness to say that it was correct, and that 

 he would not dissent from the statement, the inquiries "Are you going 

 to be rash enough to disagree with these written statements *"and "Will 

 you venture to say that this Mr. Murray, of Port Mulgrave, has not 

 better opportunities than you have of knowing how these matters stand ?" 



