economized, if we are allowed to submit such views as it may be our duty to maintain at the close instead of the advance of the examination of witnesses.

As we understand the wish of both governments to be that the whole discussion should be as frank and full as possible, it has occurred to us that you might be disposed to allow us to adopt such an arrangement as would in our judgment best enable us to lay before you a complete presentment of the opinions of the government we represent. And we feel more assured in that opinion as this privilege deprives counsel on the other side of no advantage which they now possess. For, beside the right to reply to the printed argument which they now have, we would of course expect that they would also be allowed the right of oral reply, if they desired to exercise it.

An opening speech is not necessary, as the counsel on the other side have shown, but it would be obviously improper to submit this Case without a careful review of the testimony which will have been offered on both sides; and this can be done with much more convenience and thoroughness by an oral speech than by a written argument. To say all that it may be our duty to say in a printed argument would be impossible, without swelling it into a volume of unreadable proportions.

It is our purpose to make the printed argument a complete but concise summary of the contention, a clear statement of the principles involved and the authorities referred to, accompanied by an analysis of the leading facts of the testimony. This we can do, so as to make it an efficient help to you in your own examinations of the case, if we are not compelled to overload it with all the discussion which the evidence and the case itself suggest, but which we could sufficiently dispose of in oral argument.

We would therefore request permission so to distribute the argument on our side as to have the opportunity of submitting our views orally, upon full comparison of all the testimony taken. It is no small inducement to make this request that we believe that upon the close of the testimony we will be able to dispense with much argument which we can scarcely avoid in the present imperfect condition of the testimony. Respectfully,

RICHARD H. DANA,
WM. HENRY TRESCOT,
Counsel for United States.

Mr. FOSTER said: As the motion just made involves a departure from the course of procedure adopted by the Commission, to which I assented, it is proper that I should say a few words in reference to it. At the time the rules were adopted, the Commission certainly cannot forget the position in which I found myself placed. Contrary to my own expectations and to the expectations of my government, the Commissioners decided to allow the active participation in the conduct of the case of five counsel on behalf of the five maritime provinces. I came here expecting to meet only the Agent of the British Government, and suddenly found I was also to meet five leaders of the bar from the five provinces. I felt it important not to have five closing arguments against me. Now that there are counsel here to represent the United States as well as the British Government, it seems to me reasonable that such a modification of the rules should be made as will permit the services of the counsel who have been brought here in consequence of the decision of the Comsion to be made available to the greatest extent. While I should have

been quite content to have discussed this matter in writing with the British Agent, finding that I had to meet five counsel, my government has been obliged to send counsel here, and it seems desirable that we should be able to use them in the most efficient way.

Then, again, the evidence has assumed a very wide range, and is manifestly going to be conflicting to the last degree upon some of the points, notably as to what proportion of the mackerel taken by the American fishermen in British waters is taken within three miles of the shore. On that subject there is going to be a very great conflict of evidence. I don't believe that such a question can be satisfactorily discussed either in advance of the reception of the testimony or in writing after it is all in. It involves so much detail, that the writing, if laid before you, would swell to a bulk that would be altogether unreasonable. I therefore very strongly concur in the application that has been made.

Mr. DOUTRE suggested that the British counsel should have time to consider the matter before replying.

Mr. FOSTER Concurred, and said that was the reason the application and the grounds of it had been put in writing.

At the Conference held on Wednesday, August 28, 1877.

Mr. THOMSON. An application was yesterday made to the Commission. I was not present at the time, but I have seen the written proposition, and I understand that it was an application made to your excellency and your honors for the purpose of altering the rules. On behalf of Her Majesty's Government-I am also now speaking the mind of the minister of marine-I may say that these rules have been solemnly entered into. We have acted upon them from the commencement to the end so far as we have gone, but still we have no desire that our friends on the other side should be deprived of any right which they think they ought fairly to have in order to bring their cases before this tribunal. We, however, certainly deprecate any alteration of the rules; and we feel that we are just in this position. During all this time that we have been examining our witnesses, we did so under the idea that the rules would remain as they were engrossed. It is important, we think, in such an inquiry as this, that these rules should be rigidly adhered to, unless there be some very important reason why they should be deviated from. I confess, speaking for myself, that I hardly see the force of the reasons advanced in favor of the proposed change on behalf of the United States Government. They say that their argu ments, if placed on paper, would be so bulky as to fill a large volume. Possibly that may be so; but still that is rather more complimentary to their powers of discursiveness than anything else; and they accompany this expression of opinion with the statement that they wish to be heard orally at great length. I presume that this will all be reported by the short-hand writers, and in the shape of a lengthy volume it will meet the eyes of the Commissioners; so I do not see how this bulky volume is in any way to be escaped. Nevertheless, as I said before, we are not desirous to object to our friends on the other side taking this course in order to fairly bring the merits of their case before the tribunal, if they so think fit. We, therefore, are willing that they shall, if they please, be heard orally at the close of the evidence on both sides; but we submit-and we trust that in this respect there can be no difference of opinion-that your excellency and your honors will not make any deviation from the rule which requires our friends on the opposite

side, at the close of their case, to file their written argument, if they intend at all so to do. We contend that it would be entirely at variance with the whole spirit with which this inquiry has been conducted that they should, after making their speech, call upon us, if we please to make a speech in answer, to make it, and that they then should file their written arguments. Such a course would wholly displace the position which we occupy before this tribunal. Great Britain stands here as the plaintiff, and the ordinary rule in courts of common law is this: That the plaintiff, after a short opening of his case, calls witnesses, as we have, and at the close of the plaintiff's case the defendant, after a short opening of his case, also calls witnesses; the respective counsel for the defendant and the plaintiff then make their closing arguments; after which the case is submitted to the jury by the judge. This is the course followed; and, therefore, while we are willing, if it is really thought necessary by my learned friends so to proceed, that they should have the right to close their case by arguments in writing, or verbally and in writing, yet if they close verbally and then wish to put in a written argument, that must be done at once; and we, if we so please, will then answer them verbally or in writing, as we like, or in both ways. I confess, speaking from the stand-point of counsel, that so far as I have a voice in the matter, I rather reluctantly agreed to this, because I think that these rules were formally framed; and, in reality, the proposition that the case should be conducted by written agreement came from the learned Agent of the United States, if I understand rightly, and we acceded to it, and entirely on that basis we have conducted the whole of our case. Still, I say again, that we will meet our friends half way.

Mr. TRESCOT. I suggest that my friend's proposition is an attempt at meeting by proceeding half-way in different directions; the trouble is that our half-ways do not meet at all. I am not sure that I understood my friend exactly, but as I understand him, he claims the right of two replies; that is, the right to reply to our oral argument and then the right to reply to the printed argument, to which we have no objection.

Mr. THOMSON. I said we would reply to your two arguments, oral and written.

Mr. TRESCOT. If you mean that we are to make an oral argument, and that if you do not want to make an oral argument you shall not be obliged to do so, I have no objection.

Mr. THOMPSON. I suppose that we will exercise our pleasure regarding that matter.

Mr. TRESCOT. If we make an oral argument, they have the right to reply. If, then, we give a printed argument, they have the same right to file a printed argument in reply; their relation to us in the case is preserved throughout. My friend refers to the character of the case, and taking into consideration not only the character of the case, but of the parties of the court before which we are, I may even venture to say of the counsel engaged, I do not think we ought to proceed in the spirit of a nisi prius trial. Your judgment certainly cannot be prejudiced by a full and frank discussion. Our purpose is to save time and labor. We propose orally to discuss this subject before you with a frankness and freedom that we cannot do in writing, and then to put in a printed summary, giving counsel on the other side the right to put in the final one. Surely my friend does not want us to adopt his suggestion because he wants to say something at the last moment to which we will not have opportunity to reply. There cannot be anything of a mystery in an

argument like this. We all now understand what are the issues which are before us. We only want to discuss them with perfect frankness and fullness, so that everything that is to be said on the case may be said. I want this case to be so argued, both in spirit and fact, that whatever the award may be, and whoever is called upon to submit to an adverse decision, they will be satisfied, having obtained the fullest possible hearing on the subject. I want to secure no advantage over my friends on the other side, and I do not believe that they desire to have any advantage over us; if they will allow me to borrow an illustration from the language of their witness, we do not wish to "lee-bow" them. But I think that my learned friend is sacrificing himself to a sort of technical superstition for the word "reply." In this case there is nothing mysterious, and no necessity exists in regard to having the last word. We are willing to lay our whole argument before the Commission, and then to let them reply to it, if they so wish; but if they do not choose to do it we do not intend to compel them to reply, and it is perfectly in their power to effect themselves what they propose by declining to reply to our oral argument and confining themselves to their final argument. I say frankly I would regret such a decision very much. We wish to know their case as they regard it, and without depriving them at all of their right to reply, to have a frank, full, straightforward and manly discussion of the whole question. I have always thought that the fairest manner for submitting a case is followed before our Supreme Court. Both parties put in their printed arguments, bringing them within the common knowledge of each party before the court, and then they are allowed to comment on these arguments as they please.

Mr. THOMSON. I agree with Mr. Trescot that this cause has not to be tried as one at nisi prius; we do not want nisi prius rules here, but we want the broad principle understood that Great Britain in this case is the plaintiff, and as such she is first to be heard and the last to be heard. A great advantage is obtained by the United States by hearing our case first, and for this very simple reason, during the whole time our evidence is being given before this Court they can be preparing their witnesses to meet it. There is always this advantage given to the defendant in every case. He has the privilege of hearing the plaintiff's testimony, and during the time the testimony is being given, he has the opportunity of preparing his answer. On the other hand, when the plaintiff comes to close the case, if there be an advantage in having the last word, the plaintiff has it. So the advantages are about balanced. A "frank" discussion, under the proposition submitted by the counsel for United States, simply means that the United States would get entirely the advantage in this cause. There is not the slightest desire on the part of the British Government or on the part of the Canadian government, represented here by the minister of marine, that one single fact should be kept back or forced out as against the United States; on the contrary, that they shall have the fullest opportunity of being heard; but we submit that not only the rules solemnly adopted by this tribunal, but the rules which govern the trial of ordinary causes, should not be departed from. We have given way a great deal, when we are willing to allow our learned friends who represent the United States to take the course they propose to this extent, that they shall make their oral speeches if they choose to do so, and if they choose, in addition, to put in a written argument, well and good, but they must do it at once, and that, if we please, we shall answer their written argument and speeches orally and by written argument, or by one of those modes only. We ought not to be asked to yield more.

Mr. DANA. Your excellency and your honors: From all the experience I have had in the trial of causes, where there has been examination of witnesses, it appears to me to be the best course to argue the facts of the case after the facts have been put in. Such is the practice in the United States, and I presume in Canada. This seems a simple proposition that the time to argue upon the facts, to affect the minds of those who have to judge and determine, should be when it is fully ascertained what all the evidence is; and it is always dangerous, often inconvenient, and always illogical to argue upon supposed, assumed, supposititious, hypothetical testimony, which may never come before the Court.

I suppose your excellency and your honors understand my objection. It is to a rule which permits that when the plaintiff has put in all his evidence, and the witnesses have been 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, and then to make an argument upon that testimony, assumed and hypothetical as it is, and to contrast it with the testimony of the plaintiff, and deliver his mind fully and finally on the subject. This is dangerous and utterly unsatisfactory. Consequently in the United States, and I presume in the Dominion, the argument is made after it is known what the testimony is, because the plaintiff's counsel in an ordinary cause, or the counsel representing the Government 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 the witnesses have not said all that 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 the plaintiff, and the rebutting testimony may produce effects which the defendant's counsel had no reason to anticipate, and which, without directly contradicting his testimony, may place it in a new light. So I think every person will see, and I am quite sure this tribunal will see, it would be wasting time for us to attempt to impress by argument, comparison, and illustration, the effect of testimony which has not been put in. Now, when we speak of opening the case for the plaintiff 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 argues on the character or effect of his own testimony, he is stopped, because he is arguing.

Now, if I 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 that 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 argument on the testimony, the points of law, and everything connected with the case. The learned counsel for the 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 honors might have said, "We wish you would open your case, because we will better understand the testimony as it