comes in, and know how to apply it, and also the counsel of the United States will have a better opportunity to understand your case from the first, and be better able to cross-examine witnesses, and adopt what course they may see fit with better intelligence of your position." But the learned counsel for 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 this 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, because 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 to 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 having opened, neither thinking an opening necessary or desirable. We shall then proceed with our testimony until it is completed; the rebuttal testimony will then be put in by the British counsel, and it is not until the rebuttal testimony is completed that this tribunal can be supposed to know on what facts it is to proceed. Now, do your honors think it is desirable to have an argument before you know on what facts you are to proceed? All the facts having been placed before the tribunal, then is the time to argue the question.

It may be said by the learned counsel that what I have so far stated is unnecessary, because they don't mean to compel us to open. But I think your honors will see it is well to understand in advance what is meant by an opening and an argument. When the whole of the evidence is before the tribunal, then comes the question, in what form can the counsel for the respective governments most beneficially to themselves, to their opponents, and, what is most important, to the tribunal that has the weighty responsibility of determining the case, present all the facts and the principles of law and policy to which they are applica ble! Whatever mode will do that best is the one we ought to adopt. We, the Agent of the United States and, the two United States counsel, have made up our minds that it will be more satisfactory to the tribunal that has the judgment of the case, quite as fair to the opposite side, much more satisfactory to us, and more just to the United States, that the course which we propose should be taken. The only question is whether the course we propose should be adopted or the course proposed by the counsel for the Crown in amendment thereto. They seem to see that after the examination of witnesses and reading of affidavits, extending over a long period, an oral argument is advantageous; at all events they do not object to our making one. It is advantageous, because it can be done always with more effect. I do not mean more effect as respects the person who delivers the argument, but more effect on the course of justice, than a printed argument. When an oral argument is delivered, any member of the court who thinks the counsel is passing from a point without making it perfectly clear can ask for an explanation. We desire that this tribunal shall have an opportunity to ask, at any time during the argument, for an explanation, if any explanation is

needed. It is, moreover, a hardship to those who hand in a printed argu. ment to be left in uncertainty as to whether further explanations may be necessary. I therefore think the experience of all engaged in ascertaining truth by means of witnesses and arguments shows that there should be an oral argument, if possible, on the testimony and such of the principles of law as are to be affected by it.

In this case it seems to be thought expedient also to have a printed argument. Perhaps it may be; but if it should be given up by both sides, we do not object. If there is an oral argument only and no printed argument, we shall be more careful in our oral argument to examine into all questions of law. If there is to be also a written argument, the oral argument would be confined more to the facts. Now, your honors, our suggestion is that we shall, as the defendant always does, when the evidence closes, argue the facts with such reference to principles as may be thought expedient. When that is done, it is the plaintiff's time to reply orally. The briefs are a different thing; the printed arguments are a different thing. In a great case like this-a question between the two greatest maritime powers of the world and intrusted to three gentlemen with absolute power over it-whatever will best tend to enable each side to understand the other fully, at the time when it is necessary to understand them, is for the benefit of justice. When we have made our oral argument, the counsel for the Crown will make their oral argument. If they choose to waive the privilege of making that oral argument, if they think their policy will be best subserved by making neither an opening nor a closing oral argument, which we cannot compel them to do, and by hearing all we can possibly say before their mouths are opened, and to have their only speeches made after our mouths are closed-if that is their view of policy, I should like to know whether the agent of the Crown here tacitly gives his consent to such a course of procedure; that is, that the American side shall be obliged to put in both its oral argument and its printed argument, when the other side has put in nothing, and then have an opportunity to close upon us without our knowing from their lips anything whatever. We have had what is called the British case and what is called the American case; but they are simply in the nature of pleadings. They do not go into the testimony, they do not argue the facts of the testimony, they do not state what the testimony is to be; they are of a general character, and in no sense arguments. I think this tribunal will agree with me on that point.

In regard to the amendment proposed by the other side, by which we will be compelled to put in our printed argument the moment we close our oral argument, I will suggest to your honors some objections to it. One objection is that we shall have to prepare our printed argument before we begin to speak. Would not that be a ridiculous position in which to place counsel? They would have to prepare and print a full argument, and then come into court and make an oral argument, and then hand in the printed argument. I hardly know how I could proceed with such an undertaking as that. But a stronger objection is this: They claim the right, under their amendment, to make an oral argument as well as a printed argument after we are through. So they are not going to open their mouths, and we shall not have the benefit of hearing anything from them in this case until our pieces are discharged and our ammunition exhausted. It is then the battle is to begin on the side of the Crown. Now, your honors will see that it comes right down to this: We propose that first an oral argument should be made on the testimony. Counsel on the other side agree that an oral argument on the testimony

is a good thing; at all events, they do not object that there is anything unreasonable in having the arguments on the facts postponed till the facts are known. The only question, then, is this: shall there be first an oral argument by the American side, and then an oral argument for the Crown, if the counsel for the Crown desire it, and then our printed argument to be followed by their printed reply; or shall we be compelled to put in both arguments before hearing anything from them?

The counsel for the Crown may rise and say they don't intend to make any oral argument, and thereby retain all the benefit of a policy of secrecy, and then it would be our duty to put in a printed argument. They can force us to this by simply declining to make an oral argument. Then they would come in with a printed argument which would be the final argument. Nothing we have proposed or can propose can prevent the counsel for the Crown having the closing words, because if our sug. gestion is adopted, first we will make an oral argument, then they may rise and say they do not wish to make one, then we must put in a printed argument, and then they will close with a printed argument; only they cannot get the advantage of refusing to make an oral argument at its proper time, and make it afterwards out of time. Their own proposi tion, on the other hand, is this: that they shall not be required to make an oral argument after we have closed ours, but shall have the right to transfer that oral argument from the stage immediately after ours, until the United States counsel have finished their oral argument and put in their printed final argument. Then the counsel for the Crown can argue orally on all the testimony, and in addition put in their printed argument. The result, therefore, your honors, would be that you yourselves would be placed under a disadvantage. You will hear our argument under a disadvantage; you will always be obliged to say to yourselves, "the American counsel have given us a printed argument, but we cannot expect to find in it adequate replies to arguments they never heard." All the learned counsel on the side of the Crown have been able to say is, "We have submitted the case of Her Majesty's Government, and they have our case." I have reminded your honors what these cases are. Then as to the briefs. We put in a brief six weeks ago, and we were to have a brief from the counsel for the Crown, but we have not seen it yet, I suppose owing to the fault of the printers. That brief will not be a brief on our testimony; that, I suppose, I may assume. Mr. FORD. Yes.

Mr. DANA. Therefore, as far as the facts are concerned, that brief can be of no use, and the original case of Her Majesty's Government will also be of no use to us. I hope your excellency and your honors will fully understand we consider an opportunity to argue the facts as of very great value to the United States, and we assume you consider it at all events your duty, how much value you may attach to it I cannot say, to give counsel the fullest opportunity to argue the facts with the knowledge of two things: First, what the facts are; and second, how our opponents propose to use and treat them.

Now, it seems to me that the most common justice requires that the result should not be that before we file our final printed argument, and leave this court and this part of the world, and return to our several homes, having done all we could do under the circumstances, we should not have heard by the ear, or read by the eye, one word that would explain to us what the counsel for the Crown think of our testimony or of their own, how they mean to use it, to what points they mean to apply it, what illustrations they mean to use. That will be our position if the proposal of the counsel for the Crown should be adopted. If we are

forced into that position by the counsel on the other side refusing to make an oral argument, we cannot help it; but I hope this tribunal will not give that course its sanction in advance, and so compel the result, that we must open everything and they nothing. The adoption of our proposal would be of very great advantage to us. I am not defending myself against a charge of trying to get an undue advantage, for under no possible construction of our proposed rule would it give us any advantage, except the opportunity to know fully what is the case on the other side, and if that is an advantage, it is a just advantange. But I wish to say that I am quite confident the learned counsel have not fully considered the position in which they place themselves, us, and the members of this court by the amendment they propose to-day. And it would give me great gratification to see them rise and withdraw it and say: "You may make your arguments on the facts orally when they are placed before the tribunal; we will then consider whether we wish to make an oral argument or not; if we do not, you will never know our views; if we do, you will get such knowledge as we see fit to disclose. Then you may put in your printed argument, and we will have the opportunity of putting in our printed closing argument, which ends all, unless the court should intervene and think the other side should have a reply, because some new points were made."

That power, of course, is possessed by the tribunal, and no doubt will be fairly administered. But I do not like to take my seat until I feel I have impressed on the A gent and learned counsel for the Crown the fact that, if we are compelled to make both our arguments before they are called upon to make any observations, and before we have heard what course they are going to take, it will be a very great disadvantage to us, especially when we consider they will be in possession of all we propose to say on the subject of the testimony and the facts. Now, the view which 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 knowledge; but if our proposal is adopted we have at least the power of answering the other side in our printed argument. So it seems to me fair that before we put in our second argument we should have heard their first. I am quite sure this tribunal will feel, and never cease to feel, while you are discharging your present duties and afterward, 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 mean to apply them to your honors' minds-that this, though fairly intended, is not fair, and you will say, "We find so much in the final argument of the counsel for the Crown on the testimony, which evidently was not foreseen by the counsel for the United States in making their argument, that, to give them an opportunity to reply, we must call them back."

We do not desire that, and your honors 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 your honors will say you cannot impose that condition upon us. I do not hesitate to say, although my learned friend, the Agent of the United States, is alone responsible for the course to be taken by the Government, we could not accept it and we would withdraw the proposal altogether. Then we would either

have to proceed with our testimony or make an argument in advance on hypothetical testimony. Therefore, the proposition of the Crown, unless forced upon us, which I have no idea will be done, will be declined by us, and we fall back on our own proposition. I need not remind your honors that it gives the counsel of the Crown the opportunity of declining to make an oral argument; nevertheless I think it would be in the interest, I will not say of counsel or of my own country, but of international justice, that they would let us know before we submit our final printed argument, what they propose to say about the facts of the case. Mr. THOMSON. A great deal of Mr. Dana's argument, and it really was the chief argument, was not in reply to what I had to say in regard to the motion; in a great deal of what he said, I agree with him. I deprecate as he does arguing on hypothetical evidence. Such is not the prac tice in the United States or in our own courts. Who asks that the American counsel in this case shall argue on hypothetical evidence? Who asks that they shall be heard, either orally or on paper, on a mere hypothesis? Every fact and circumstance material to the case, both on the part of Her Majesty's Government and the United States, I assume, will have been presented before the counsel on the other side close their case. Then the counsel for the United States, as defendants in this case, will make their arguments, either orally or on paper, just as it seems best to them, supporting their own views of the case, and we, as counsel for Great Britain, will present to the court our arguments in answer to the arguments which they have adduced in support of their case. It was perfectly idle for Mr. Dana to have taken up so much time in arguing that they would be called on a mere hypothesis. Is it not idle to say to your excellency and honors, that you do not know what the case is about? Do we not all know what the points in issue are; do we not all see them? So well do the learned counsel see them that they absolutely declare they do not intend to open the case—that it is wholly unnecessary, as the court now understands every single view that is likely to be put forward. So they will understand, at the end of our case, every fact put forward by the British Government.

The points are salient and plain and are understood thoroughly by the Agents and counsel of Her Majesty and of the United States. How, then, can it be said there is any hypothesis at all? My learned friend (Mr. Dana) says I am asking that an amendment to the rules should be adopted. I am not. So far from that, the United States are coming in at this late stage of the proceedings aud asking for an amendment of rules that were made in their present form, not merely by consent of, but I believe at the instance of the learned Agent of the United States. Can it, then, be said we are asking for any amendment to be made? They are asking as a favor that the court shall lay its hands on its own rules-rules made at the instance (and in the form they now are) of the American Agent. They are asking that as a favor, and at the instance of Her Majesty's Government, and with the consent of the minister of marine, I come forward and say on behalf of the two governments that they are quite willing to so far depart from these rules as to consent to an oral argument if the United States counsel think it is any advantage to have one, though the government I represent can see no such advantage.

I can understand that a jury may be led away from justice by specious arguments, but I apprehend that this tribunal will not be swayed by any such means, and that the epitomized statement of facts given by wit nesses will have more effect than all the eloquence of the counsel on the other side. If the case is to be decided by the eloquence displayed in