Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-11-18
NUMBER 3O8.

tude on the assumption the commission has
mistaken the question that was referred to it.
That MIR. Evarts' reasoning is powerful, it is
not necessary for me to say. Nor on the other
hand will he be surprised to hear that her
ma1estys government still retains belief that
Is capable of refutation, but in their opinion
they would not be justified in following him
into the details of his argument. These very
matters were examined at great length with
conscious minuteness by commissioners. whose
work Is under discussion. The decision of
the majority was given after a full hearing of
all considerations that either side was able to
advance, and that decision, within the limits of
the matter submitted to them is under tho
treaty without appeal. The argument of Mr..
warts amounts to review of their award.
upon the question of fact and pecuniary coru-
putatlon referred to them, so contends that the
sum awarded is excessive, and that therefore
tne award must have been arrived ct by some
lilgitimate process. But to argue against tho
validity OF an award solely on the ground that
Inc conclusion arrived at by arbitrator on the
very point referred to them, is erroneous, is in
effect the same thing as to dispute Judgment
which they have found upon evidence.
her majesty's government do not feel that 1t
is their duty to put forward any opinion ad-
verse or favorable, to the decision which the
majority OF the commissioners have passed
upon the atfidavits and depositions which they
have had to consider. Her majestys govern
ment could not do SO without undertaking tho
same laboiious investigation as that which was
performed by the commission, task for which
the interval which has been left between Oct.
10th, the day on which Mr.. Evarts' dispatch
was delivered to me. and Nov. 2sd, the day on
ha ro.,o payment non15 ,oa awarded is to
But they IRE precluded from
passing in review in the Judgment of the COM
mission by G fur more serious disqualification.
They cannot be judges of an appeal in this case
because they have been itigants. As litigants
they have expressed a view of the fact. which
they hav- felt bound in that capacity to main
tain. Their computations have been totally
different in matter and result from those which
the American counsel sustained and which in
part Mr.. Evarts reiterates in his dispatch.
The Interpretation which they have given to
the data laid before the tribunal has been in
opinion, and have insisted with all
the force of argument that
their agents could command that $i5, O0O, 900
was legitimate compensation, which,
under the treaty, was due. The majority of
the commissioners decided to reduce that
claim nearly by two-thirds. Having finally
engaged to submit the matter to this arbitra-
tion they do not think it is open to inquire
how 1T Is that the commission came to form an
opinion upon their claims 30 evidently differ
ent from their own. Still less can they admit
that either side is entitled to treat the differ
ence as the ground for assuming that the arbi-
traitors have imported into their Judgment
considerations which the treaty did not author
ize them to entertain.
AT the close of his dispatch Mr.. Evarts refers
to the consideration which ought to pass over
without observation, though he does not place
Ii IN the first rank among the objections which
he raises against the award. He calls attention
to the fact that the award of the commission
was not unanimous, and that in the treaty of
Washington no stipulation is in this case made
that the decision of majority IL to be bind
ing. The opinion that according to the treaty
of Washington the fishery commission was in
capable of pronouncing any decision unless its
members were unanimous is one in which her
majesty government are not able to concur.
1t is not difficult to produce from text books
of very recent date, authority for the doctrine
that in international arbitration the majority of
the arbitrators binds the minority unless tho
contrary IL expressed. am not aware that
any authority who is respected in international
arbitration could be quoted in contrary sense,
and it would not be difficult to show reference
to cases in American as we'll as in English courts
that the same rule has always been judicially
applied in the case of arbitration of public
nature. The language and stipulations of the
treaty itself, so far as they are explicit upon
the subject, point to q similar conclusion.
The suggestion that the trainers of the treaty
meant by their silence to prescribe mode of
proceedings which, before tribunal thus con-
stituted, is unexampled, and can only be ac-
ceptea on the hypothesis that they were DELHI
erately preparing an insoluble controversy for
those by whom the treaty was to be executed.
Lord Salisbury enters into lengthy argu-
ment in support of his positions and concludes
as follows: Ii jury were constituted ON the
principle that the plaintiff should choose one
third and defendant another third, very few
persons would be found to expose themselves
to the cost OF action at law. Had it been
II tI,Fny tt,aS,
prevented by the dissent of one of
the members of an arbitration constituted on
this same principle, though do not venture to
conf lecture what the course of tho
United States government would have been, |
feel confident that England would have de-
clined TO enter upon 80 unfrultful litigation.
Her majesty government may appeal to the
cogent proof that, in accepting this arbitra-
ton, they did not contemplate that award
was likely to be prevented by requirement of
unanimity. Believing that they were to be
heavy losers by the exchange of concessions
contained in articles Is, 10 and 81 of the treaty
they, nevertheless, have, for five years allowed
these concessions to into
force, trusting to compensation which
the commission would give to them. That
they have done 80 is sufficient proof that they
did not anticipate construction of the treaty
which would make the delivery of an award
almost impossible. Valuable property has
0ctudiLy Passea lnlo tuc enjoyment OF OLnere,
and cannot be recalled. The price to be paid
for it was to be determined later by tribunal
agreed upon BY each party. Is it conceivable
that they should have deliberately constituted
tribunal for the purpose in which a decision
could be wholly prevented by the dissent of a
member nominated by e party to whom the
property had passed?
Reoiprocating cordially the courteous and
friendly sentiments by which Mr.. Evarts' lam
guage IL inspired, her majesty's government
feel confident that the United States govern
ment will not, upon reflection, see in the con-
siderations which have been advanced any
sufficient reason for treating as a nullity the
decision to which the majority of the CON-
mission have arrived. l have, etc.,
tSigned) SALISBURY
To JOHN WEIGH, ESQ.