Year: 1878

and u is quite clear Of any intermixturs
with the substance of the award ~ safisfao-
tory unsatisfactory to either party ~ TURNS hrst
upon the mere text OF the treaty ana, second upon
the surrounding circumstances and the different sub
jects be treated by the various boards of arbtra
ton framed by the Treaty Of Washington so far ~
they may be rightly resorted to in aid OF Just con-
sruction of the text. BY the Treaty OF Washington
four boards constituted for the determination OF
certain matters TO be submitted TO theif respecuVs


FSrst-The Geneva Arbitration was composed of fvs
members, in regard to whose deliberations and con-
cusons article of the treaty expressly provides that
"an questions considered by tribunal including
the final award shall be decided by majority OF all
the arbitrators.''


Second-A board of assessors under the Geneva Ar
bitration, in case the tribunal should not award
gross sum. was to be composed Of three members In
the action of this board article 10 of the treaty declares
that "a majority Of the each shall be


Third-A commission of three members to deter.
mine reciprocal claims between the two countries
arising during the civil Article l3 provides that
for award in each case"


FourA-The Halifax Commission. composed OF
three members. undstinguished. among them
selves. by, any ascription OF umpirage to
either and vrs with NC no provision than in any fSr
number The treaty expressly accepts awards signed
by the asserting arbtrstors or assessors or commits.
soners under the other articles, while in the OF
the Halifax Commission, this provision takes the
place Of such acceptance The case on either side
shall be closed within period of six months from the
date of the organization of the commission and tho
commissioners shall he requested to give their award
a possible thereafter.


The argument from this comparison is obvious. The
high contracting parties possessed common system
of Jurisprudence according to which reference to
arbitrators, required the award to be the
Of the arbitrators that Is, Of all OF them. Tho
parties to arbitration, public private, might
accord to any lesser number the power of
award but express stipulations in the
sion alone could carry that authority. Acting
in full view of this rule, to which desired
ception needed be expressed in three in tha
deliberate and solemn instrument the high
contracting parties impaired the authority to ma
hvp fr1 and
In the of the Halifax Commission. last i'll tho
order Of the treaty and with the previous arrange.
under their eyes. this power is withheld.
1t is impossible. because it is plainly irrational to say
that treaty provision, containing power to MA
jorty to bind. and treaty provision expressing no
such authority. mean one and the same thing; The
high contracting parties nave excluaea any sncn con
text of the treaty discloses


To the countervailing suggestion that this var,a-


ton from the system of the treaty in the case OF the
Halifax Commission. is most reasonably accounted
for by inadvertence the part of the High Joint
Commissioners the answer is obvious. II either or
the high contracting parties should aege, which
it certainly would not do without much deberation
the suggestion would not affect the argument
as to the meaning Of the treaty it stood.
but would be in the nature OF appeal to the
other high contracting party to waive the objection
and reform the treaty No doubt cases may exist
where such appeals should be frankly responded to,
though against interest But you will say to Lord
Salisbury that the suggestion of inadverence in the
negotiations to be lightly induged in, over
looks adequate and presumably the real reason for
the Fisheries Commission, while it was expressly
waived in the other submissions OF the treaty In the
matters of computation submitted in the several
other references of the treaty two circumstances dis.
tnguished them from that submitted to the award Of
the Halifax Commission =


proof-an appraisement Of the ships and cargoes de-
stroyed by the Alabama and her consprts-
an estimation Of damages to persons or
property suffered by individual British subjects,
American citizens, for which reparation should be
nade-these were matters of dehnitive affirmative
proof in pounds dollars before any award could
be asked and subject to correction by equally
definite opposing proofs before any award could DO
syecond-The assessments carried measurement
or still subssting interests between the high con-
the several awards. II was then quite suitable to
these references to accept the Judgment OF majority
aud dispense with the of both parties as
represented in the commissions i'll the result OF the
contentious before them.


different in nature. and in the relations of the
high contracting parties to the subject OF contention
upon the high contracting parties the need OF every
possible guaranty against unreasonable or Ilusory
estimates on the part of the Commission to tho
prejudice of party the other Besides.
this computation touched a matter in which large
classes and interests Of either community felt
concern and it essential that dissatisfaction with
results should be aleviated by confidence in the judg
men So vague q subject of valuation as the twelve
years prospective catch of mackerel within three


miles OF the shore tho coasts of the United States
and Of the provinces so difuse problem ~ the dis
tribuion Of the burdens of duties between pro-
ducer and consumer, gave too large range for
floating speculations unless anchored 70 sober
by the requirement of unanmity. The
permanent Importance OF these vauations. in the f-
ture negotiations of the two countries forbade their
submission to any commission uncontrolled by the
necessary Of misrepresentation OF both
countries in any award TH INTERESTS and feelings OF
the large populations, side and the other, de-
pendent for prosperity IL not for livelihood these


fisheries made the two governments careful To secure
them in any result against q of injustice well
Of disappointment by this conservative require
ment OF unanfnity.


In submitting to Her Majesty's government the
failure of the Commissioners to come to the agree
ment which, this Interpretation OF the treaty. is
requisite to the validity of the award, this govern
ment wishes to lay no undue stress upon this obec
ton. II Her Majestys government concurs in this
construction OF the authority conferred upon the
Halifax Commission, this agreement between
the governments will enable them presently to


tory arrangements for the reciprocal interests of the
industry aud commerce Of the privinces and of tho
United states, than at present exist IT, on the other
hand, Her Maiestys government shall announce to
that the of majority of the Commission.
warrants valid award. notwithstanding the
declared dissent of the third Commissioner. this
government will not refuse to accord to that opinion


thus expressed all the weight which it deserves for its
own views.


You will therefore, say TO Lord Salisbury that upon
such declared disagreement upon the true interprc-


ation Of the treaty in respect Of unanimity of tho
p,aintenance Of entire good faith and mutual
respect in all dealings under the benefcent Treaty
OF Washington as or paramount concern, and viii
not to press its interpretations vt the


treaty this point against the deliberate interpreter
ton of Her Maiestys government to the contrary.
You will promptly communicate these views to Her
Maestys government by delivering copy OF this de-
spatch 10 Lord Salisbury and requesting early at


e'''''A = - '' WILLIAM NJ EvARrs.