169 



proposal of tlic counsel for the Crown should be adopted. If we are forced into that 

 position hy the counsel on the other side rcfusinj;' to mala' an oral arguncnt, we 

 <annot lulpit; hnl 1 hope this tribunal will not give that course its sanction in 

 ndvaiici', and m> compel the result that we must open everything, and they nothing. 

 Tiu! a(h)pti()n of our proposal would he of very great advantage to us. I am not 

 riei'cndinn- myself against a charge of trying to get an undue advantage, for under 

 no |)ossii)le construction of our proposed rule would it give us any advantage, 

 except the opportunity to know '"'iMy what is the case on the other side, and if that 

 is an advanlage, it is a justa(l\ i.tage; but I wish to say that I am quite confident 

 tlie learned counsel have not lully considered the position in which they place 

 themselves, us, and the mendjers of this Court, by the amendment they propose 

 to-day. .\nd it would give nu> great gratification to see them rise and withdraw it 

 and say, " Vou may make your arguments on the facts orally when tjiey are placed 

 helbre the tribunal; we will then consider whether we wish to make an oral 

 nrgiiMient or not; if we do nol, you will never know onr views; if we do, you will 

 net sueh knowleilge as wo see fit to disclose. Then you may put in your printed 

 argnnuMit, ;in(l we will have the opiuirtunity of |)iittiiig in our pruited closing 

 aigument, wliieli ends all, unless tlie Court sliould inlirvene, and think the other 

 side should have a reply, because some new jioints were made." 



That power, of course, is possessed by the trihunal, and no doubt will be fairly 

 administLred. Ibit 1 do not like to take my seat until 1 feel I have impressed on 

 the Agent and learned counsel for the Crown tlif* fact that, if we are compelled to 

 make both our arguments before tliey are called ujjon to make any observations, 

 iiiul l)ei'.)re we have heard w hat cour.ie they are going to take, it will be a very groat 

 disadvantage to us, especially when we consider tliey will be in |)osscssion of all we 

 propose to say on the subject of the testimony and the facts. Now the view wdiich 

 the learned counsel for the Crown may take of certain facts may be one that has not 

 occurred to us. The illustrations they may furnish, and the manner in which they 

 may deal with the various witnesses, are matters regarding which we have not the 

 prescience absolutely to know. We have got, however, to make our oral argument 

 without having this kn<jwledge ; but if our projxjsal is adopted, we have at least 

 the power of answering tlie other side in our jirinted argument. So it seems to me 

 fair that hefore we put in our second argument we should liave heard their first. 

 1 am ijiiitc sure tiiis tribunal will feel, and never cease to feel, wiiile you are 

 (lisehaigiiig your |)rest nt duties and afterwards, if the amendment is adopted and 

 the counsel of the United States compelled to deliver their arguments, written and 

 oral, before the Crown had given us any idea of their views of the facts, how they 

 iiicaii to a|)ply them to your Honours" miiuls — that this, though fairly intended, 

 is not fair, ami you will say -" \Vc lliid so much in the (iiial argument of the counsel 

 lor the Crown on the testimony, which evidently was not foreseen by the counsel 

 for the United Stales in making their aigument, that, to give them an opportunity 

 to rejdy, we must call them back." 



\Ve do not desire that, and your Honours do not desire it. As the learned 

 counsel on the other side do not object to our proposition in itself, but are willing to 

 accept it upon a single condition, which condition would operate as I have shown, 

 I trust vour Honours will say you cannot impose that condition uj)on us. I do not 

 hesitate to say, althougii my learned friend, the Agent of the United States, is alone 

 rcsponsil)le for the course to be taken by the Government, we could not accept it, 

 and we would withdraw the proj)Osal altogether. Then we would citi ir have to 

 proceed with onr testimony, or make an argument in advance on hypothetical 

 testim()!iy. Therefore, the proposition of llie Crown, unless forced u|)on us, which 

 1. have no idea will be done, will be decliiieil by us, and we fall back on our own 

 proposition. i need not remind your Honours that it gives the counsel of the 

 Crown the opportunity of deelining to make an oral argument, nevertheless 1 think 

 it would he in the interest, 1 will not say of counsel, or of my own country, but of 

 international justice, that they shouki let us know, belbre we submit our final printed 

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



Mr. Thomson — A great deal of .Mr. Dana's argument, and it really was the chiet 

 argimieiil. was not in reply to what 1 had to say in regard to the motion ; in a great 

 deal of what he said 1 agree with him. 1 (!e|)ieeate as he does arguing on hypo- 

 tliclieal evidence. Sueh is not the practice in the United States, or in our own Courts. 

 Who asks that the American couns-el in this case shall argue on hypothetical 

 evidence; ? Who asks that they shall be heard, either orally or on paper, on a n.ere 

 hyjwthesis ;" Every fact and circumstance material to the case, both on the part of 



