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111. Such is tlk' piactict! in the United States, and 1 presume in Canada. This 

 seems :i simple proposition : that the time to arg^ue upon the facts to alFect the 

 minds of those who have to judge and determine, should be when it is fully ascer- 

 tained what all the evidence is, and it is always dangerous, often inconvenient, and 

 always illogical, to argue upon supposed, assumed, suppositious, hypothetical testi- 

 mony, which may never come before the Covrt. 



1 suppose your Excellency and your Honours understand my objection. It is 

 to a rule which permits that wiicn the plaintiff has put in all his evidence, and the 

 witnesses have l)een 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, aijd then to make an argument upon that testimony, 

 assumed and l)y|)othctical as it is, and to contrast it with the testimony of the 

 plaintiir, and deliver his mind fully and fnially on the subject. This is dangerous 

 and utterly unsatisfactory. Consequently in the United States, anu I presume in 

 the Dominion, the argument is made after it is known what the testimony is, because 

 the plaintirt's counsel in an ordinary cause, or the counsel representing the (lovern- 

 ment here, may rise with full belief that it will be in his power to place the case in 

 a certain position by his testimony, but it may turn out that he will be disappointed 

 in his testimony, that th.c witnesses have not said all 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 tiic plaintilf, and the rebutting testimony may produce effects which 

 the defendant's counsel had no reason to anticipate, and which, without directly 

 contradicting his testinumy, may |)lace it in a new light. So I think every person 

 will see, anti I am (luite sure this tribunal will see, it would be wasting time for us 

 to attempt to impress by arj;ument, comparison, and illustration, the effect of 

 testimony which has not been put in. Now, when we speak of opening the case for 

 the plaintilf or defendant, we do not mean arguing the case. 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 argue on the character or effect of his own testimony, he is stopped, 

 because he is arguing. 



Now if 1 recollect the rules of the Commission, there is a provision, not that the 

 British counsel should argue the case upon supposed testimony, but that they 

 should open their case and put in their testimony ; then, not tiiat we should argue 

 upon their testimony, and our supposed testimony, but that we should open our case 

 by merely explaining what evidence is expected, and when all the testimony should 

 be in, rebutting testimony included, then there was to be a complete printed argu- 

 ment on the testimony, the points of law, and everything connected witli the case. 

 The learned counsel for titc Crown thought, wisely, no doubt, that it was not worth 

 while to have an opening at all, and they did not make one. Now, your Honours 

 might have said, " We wish you would open your case, because we will better 

 understand the testimony as it comes in, and Know how to apply it, and al.so the 

 counsel of the United States will have a better opportunity to understand your case 

 from the first, antf be better able to cross-examine witnesses, and adopt what course 

 they may see tit with better intelligence of your position." But the learned counsel 

 lor the British Government made no opening, and of that we made no complaint. 

 Now, we are very much in the same position they were in then, only we have a 

 much stronger reason than they had. 



By tills time, an opening, technically speaking, is not necessary. If the British 

 counsel thought it was not necessary three weeks ago, it is much less necessary 

 now, liecause this tribunal understands the main points taken on each side, and has 

 a general view of the manner in which each side expects to meet them by testimony. 

 As the counsel on the other side did not open the case, they would surely not think 

 of maintaining that we should now open ours. We propose, as soon as they have 

 concluded their evidence, to begin on our evidence. If this tribunal, or any member 

 of it, should ask that, before we proceed to put in any testimony, we should make 

 any explanation, we are quite ready to do it, or if the counsel for the Crown should 

 so desire, we are ready tt) do it. For ourselves, we do not propose to do so, but to 

 go directly on with the testimony. We will then be on the same terms, neither side 

 iiuving opened, neither thinking an opening necessary or desirable. We shall then 



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