National Republican., 1878-11-18

"''S s'iHhiNNNNt NNtu sltN W tup pOsSiUio We
lay which the requirement Of fnii trbunal
In each case might cause. That the majority
should be sufficient for IN award In the case Of
one member being absent was rule which 1t
was necessary to lay down, for where frequent
decisions are not required provisions Of the
kind arc not customary. On the other hand,
1t is a universal practice that upon public arbi.
tratiOus thus constituted In case Of difference
Of opinion the majority shall prevail. 1t is
therefore consistent with sound principles Of
Interpretation to assume that the phrase was
meant to apply to the point on which provi'
sion was necessary and not to the point on
which provision was supcriiuOus.
The same reasoning Is applicable to the case Of
the Geneva tribunal. which had TO decide OF the
alleged failure Of neutral duty in Great Britain
Ms to seventeen different ships, besides IucS.
tions arising in respect to damages. The board
rf assessors. which was provided In ease the
Geneva tribunal had not awarded q gross sum,
was commission Of claims, which would have
had to adiUdicate upon very large number of
individual losses In these cases, therefore, as
in that which has just been advcrtcd to, the
Joint High Commission took a natural and a
iudiCious course in providing that a decision
should not be invalid by reason Of the absence
Of q member Of the tribunal so long RS n ma.
iority COnCurrcd In the award On the other
hand, no such provision was necessary IN the
case of the Halifax Commission, which, beyond
questions of procedure, had but one issue be.
fore 1t and but one decision to pronounce.
In this case II was not necessary to lay down,
as in the other cases, that a majority of the
Commissioners should be sufficient for an award,
or that all questions should I've decided by a
majority Of all the arbitratOrs This construc.
tiOn of the treaty appears TO Her Maiestys
government more natural and more respectful
to the Joint High Commission than the as.
sumption that, having resolved to leave one
Nr
was entirely novel and wholly unlikely to
ssue in a decision, they carefully abstained
from the use Of any words TO indicate tho um-
usual resolution they had formed. IL further
appears to Her Majcsty's government that a
distinct intimation Of the true meaning Of the
Joint High Commission in respect to the fish.
cry award Is 10 be found In the composition of
the tribunal which they adopted. This con.
struction is consistent with the intention that
the majority should decide. 1t is not consist
eut with tho supposed intention that the dis.
sent Of one Commissioner should prevent any
decision from being pronounced. The twenty.
third article Of the treaty makes the following
provision for the constitution of the tribunal &:
Article .. The Commissioners referred to i'm the
preceding article shall be appriutCd In the follow.
Ing manner, that is to say :Onr,COmmiss!Ouer shall
be named by Her Britanc Majesty one by the
President of the United States, aud third by Her
Britannia Majesty aud the President Of the United
states COuiOinly, and In case the third COmmSSiuE-
or shall not have been 50 namcl within period OF
three months from the date when this article shall
take effect then the the third Commissioner shall be
uamcd by the representative lRt LONDON OF His
Majesty the Emperor Of Austria and King of Hun.
gary. In case vt the death. absence, or mcapaCity
VI any Commissioner, or III the event OF any Com
missioner emitting or Ccns.ns to act, the vacancy
shall be filled In the manner hrr"inh";Crc provided
f.r. making the original appQiuiArnt the period Of
three months In case Of such substitution, being
calculated from the date OF the happening Of tho
vacancy. The commissioners 80 Malurd shall meet
In the city Ot Halifax Ia the Province # Nova
scotia at the earliest convenient period n'cT they
have been Ir'lc lively named, and i al. hcfoFe
proceeding t. any business, Iluhr aul subscribe a
sDumu declaration that they H',i iwpariu.ly and
Clrcf3lly mine and lie ,d" til" matter, referred
To- tyIH to the best Of their ilgnyri AMI accord.
Ing 10 Justice and equity. ANT 'urh declaration
shall b. rulrrc ON IT, rcCyuI. OF ,l.ciT urDrrl-
ing. Each OF The h:Eh C"u'!ur''i's parties snail
also name uuy person 10 attend t.e iu!nmi~,!lu ~ as
IL, ugrt. To- rcpre.uut il generally IN all mates
connected with the Commission.
Tl> /, the ordinary form Of arbitration, ia
which each side chooses an arbitrator aud an
umpire Is chosen by an indifferent party to
decide between the two. The appointment Of
the umpire Is Of no utility. The precautions
for securing this impartiality are unImcaning
ii the adverse vote OF one Of the arbitruturs
may deprive his decision Of all force aud ef.
feet. In ordinary phrascolosy the decision of
II body Of !LcmDCIs means Il decision come to
by majority of voices. In the common use
and understanding Of language thi- Is the in.
tCtplDtNllOu WhAtu susg'-ls llStll 10 every
reader when 1t Is stated that number OF men
have expressed an opinion or arrived at de.
| termination. The requirement Of unamimity
| is the exception, aud therefore can only be
conveyed by an explicit statement. There
| are Of course well known exceptions, as In the
case OF trial by jury; but IN such cases the
| constitution Of the deciding body Is diametr!.
cally opposed to that adopted in the case Of
| the Fishery Commission. Instead Of u pro.
vision that two.thirds shall be named by the
parties 10 the suit, the most elaborate preClu.
tiOns are taken that the whole body shall be
unbiased.
II is evident that when unanimity is to be
required, when any one member Of the do.
Gliding body is to have the power Of nullifying
| all the proceedings aud preventing decision,
such an arrangement will only be endurable OH
the condition that each member shall be so
| chosen as to be rs far as possible free
from any inclination to exercise that
| power Oh one side rather than on the
other. Ii jury were constituted on
| the principle that the plaintiff should
choose one bird OF it and tho defendant an.
| other third, very few persons would be found
| to expose themselves to the cost of an action
at law. Had it been known five years ago that
| an award would be prevented by the dissent
| Of ono Of the members Of an arbitration cOnsti'
| tuted on the same principle, though do not
| venture to conjecture what the course OF the
| United States Government would nave been,
feel confident that England would have de-
| rined to enter upon 50 unfruitiul II litigation
| Her Majesty government may appeal 10 &
| coyunt proof that In accepting this arbitration
| they did not contemplate that the award was
| likely to he prevented by the requirement oI
| unammity. believing, IN agreement with the
! mniority Of tho Commission, that they werG
| to be heavy losers by tho exchange of cumccs
suus contained In articles -, ~, and u Uf IA,
| treaty, they nevertheless have for five yeal
| allowed those concessions to come into force
,ru.,iug to the compensation which the Com
mission would give to them. That they hAY,
done ~ ., sufficient proof that they did no
anticipate q cun-tructOn Of the treaty whit,
| wuu,d make the delivery OF an award almU-
| Impossible. 4 valuable property has actual.
pissed into the enjoyment VI others and can
MT be grcollcA.
The pri,c to be paid for 1t was 20 be deter
mined by i later tribunal agreed upon betwceI
the parties. !, % CuI.r, iyanlr that they .yVi,
have deliberately constituted u tribunal 10
,AIs purpose ~ which decision could D
wholly prevented by the di-:.uI VI u mrmJc
nominated ~ the party 70 whom the pIvPcrt.
| ui pIssrd;
E,:WYaat!ns cordially the courteous an
!I.rnu.y ,uutImru.. by which III. EYHls .au
gulsr !; }u-wrrd, Her Mdcstys gyvvluMrn
Ice. ryH" ..It '.It the tL!twi states tUvglI
meul w,iI not, dpon reflection, ,ce m the con
,.!rialIrnj whl.h have been advanced nm
-uhl lrul IcasOa tDI treating as nudity tn
! I...-lpI - wallh tuc H..H!.E q! Iau CUH.lU.'