The New York herald., 1878-11-18

controversy for those by whom the treaty was to
be executed. 1t appears TO me that il the
language employed in the of the other tribunals
set up by the treaty be examined carefully more
favorable solution Of the difficulty may be found.
and lend themselves to the supposition that what
the craftsman was thinking OF when he employed
them was not the question whether unanimty
should should not be required, but under what
the tribunal should be held TO be fully
constituted for the purpose of giving dersion. 1t
was obvious that in the course OF pro-
tracted and manifold inquiry in which qnes-
tions would constantly come up for de-
csion il was matter of great practical importance
10 Jay down whether for each decision the presence
of the whole tribunal was required, or whether any
condition might be prescribed under which, in spite
of the absence of any one member. from illness or
other cause, valid decision might yet be given. The
difficulty of constructing on the more rigid rule a
heightened inquiry involving frequent decisions is
a matter Of ordinary experience A common mode of
from il is to tx some member short of the
tire complement as the quorum or minimum NUMBER
which must be present to give validity to decision
The trainers Of the Washington Treaty adopted All
arrangement somewhat different in FORM but similar
in effect. They laid down that the decisions shall be
valid long they adopted by number not
less than the majority of the whole body That this
is the meaning OF the three passages in which the
word majority appears may be gathered both from
the expressions themselves and from the connection
in which they are found. The following is portion
Of the first paragraph OF article No. IL on the Commits
sion of Ciy War Claims
They shall he bound receive and consider nil written
by behalf respective in support of
claims and 10 hear, il required
agent for such government aud every separate
claim majority Of the Commissioners shall be sufficient
for award ia each case.
Here it is evident that the multiplicity of the
claims was the matter specially under consideration
and that .the suciency of the majority of the com
mission for award stipulation with view
10 the possible delay which the requirements OF a
full tribunal in each case might cause That the
majority should be sufficient for award in the case
OF member being absent was a rule which it was
a 70 3 sIr rnvsons o the
kind not customary. On the other hand
it il universal practice that upon public
arbitrations thus constituted in OF difference of
opinion the majority shall prevail. 1t is therefore,
consistent with sound principles of Interpretation 70
assume that the phrase meant to apply to the
point on which a provision necessary. and not to
the point which provision was superfiuous. The
same reasoning is applicable 10 the Of the
tribunal. which had to decide on the alleged failure
OF neutral duty in Great Britain as TO seven
teen different ships. besides questions arising
in respect to damages. The Board or ASSESSORS
whch was provided in case the Geneva tribunal had
not awarded q gross sum was commission OF claims
which would have had to adudcate upon very large
number OF individual losses. In these cases, there
fore in that which has just been adverted to. the
Joint High Commission took natural ana Jndicious
in providing that decision should not he in
valid by reason Of the absence OF member OF the
tribunal so long majority concurrcd in the
award On the other hand, no such provision
was necessary in the case of the Halifax Commis-
sion, which beyond questions of procedure had but
one issue before and but decision to pronounce
In this case it was not necessary lay down. in the
other cases. that the majority Of the Commissioners
should be sufficient for an award. or that all ques
tions should be decided by majority OF all the arb
traitors This construction of the treaty appears to
Her Majestys government more natural and more
respectful to the Joint High Commission than the
assumption that. having resolved to leave one par
ticular to mode of arbitration which was en-
they carefully abstained from the use Of any words
to indicate the unusual resolution they had formed
FORMATION THE COMMISSION.
It further appears to Her Msjesty's government
that distinct intimaion of the true meaning of the
Joint High Commission in respect 10 the fishery
award is to be found in the composition Of the
frih w hey
consistent with the intention that the majority should
decide 1t is not consistent with the supposed inten
that the dissent Of Commissioner should pre-
vent any decision from being pronounced. The
twenty third article of the treaty makes the following
provision for the constitution OF the tribunal
AwT 23hc Commissioners referred 10 in the preceding
article shall be appointed n the following annerthat i
e SAY IN M ss u e m s .ass an
third sy III Tier Brsnnc Majesty the President
II shrd inc ss mot have been 50 named
n aro nsraa ss. p s s Aa he s s
shall be nnsd ~ the London
Hungary fn es.s Of the death aes-ncs neupaey of
as ysas
herenbefore provided for making the original
stitu.on being calculated Of the happen
Hi meet hf in ss c d aaa IN the Province q S"va
@ the sss,s m"%ss an pfr0a shall ii'er ss
proceeding to any business, make and subscribe
fully examine and matters referred them
s ssi ID Be the
Each Of the high contracting parties shall also
person to the commission agent TO represent
Il generally in all matters connected with the commission
This is the ordinary form Of arbitration, in which
each side chooses an arbitrator umpire is chosen
by an Indifferent party to decide between the two.
The appointment OF the umpire is of utility; the
nrrcapiions for securing this jmpartialty are un-
meaning il the adverse vote of OF the arbitrators
may deprive his decision Of all force and effect In
ordinary phraseology the decision of body of men,
bers decision come 10 by majority OF
voices. In the common use and understanding OF
language this is the Interpretation which suggests
itself TO every reader when IT is stated that .
number OF men have expressed an opinion or
arrived at q determination. The requirement OF
unanmity Ii the exception, and therefore, can only
be conveyed by explicit statement There are. OF
course well known exceptions. in the OF trial
by jlry but in slch the constitution Of the
deciding body s diametrically opposed to that
adopted in the case of the Fishery Commission. In
stead of j provision that twothir,ls shall be named
by the parties the sut the most elaborate cautions
are taken the whole body shall be unbiased 1t
Is evident that when unaniinity is to be re-
ing body is TO have the power Of
multiplying all the proceedings and preventing
n decision, such arrangement will only be endur-
able the condition that each member shall be
chosen 70 be far possible free from any in
cnation to exercise that power on one side rather
than the other. IL jury were constituted on the
principle that the plaintiff should choose onethrd OF
1t and the defendant another third very few
would be- found expose themselves to the cost of
an action at law Had IL been known five
years ago that an award would be prevented
~ the r,,, nns.,,nea on % M. .ne s,,oe nrin
cpe though do not venture 70 conjecture what the
course of the United States government would have
been, feel confident that England would have de-
clned TO enter up unfiuittui litigation.
THE PRICE 10 BE PAID.
Her Majesty's government may appeal TO cogcnt
proof that accepting this arbitration they did not
contemplate that the award likely to be prevented
by the requirement of unsnmity. Believing in
agreement with majority Of the commission that
they to be heavy losers by the exchange
OF concessions contained in articles Nos.
l5 10 and II OF the treaty. they have
nevertheless for five years allowed those concessions
10 come into force, trusting tn the compensation
which the commission would give to them. That
they have done IL sufficient proof that they did
not anticipate construction OF the treaty which
would make the delivery of award almost i'm
possible. valuable property has actually passed
into the enjoyment OF Others, aud cannot be recalled.
The price TO be paid for II to bc determined later
by tribunal agreed upon between the parties. IL IL
conceivable that they should have deliberately
ttntcd q tribunal for the purpose IN which decision
could be wholly prevented by the dissent OF MEM
Der nominated by the party 10 whom the property has
passedy