244 



DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES. 



her Majesty's Government adheres to the views of 

 the value of our market for the product of the pro- 

 vincial fisheries, so often and so earnestly pressed 

 upon the attention of this Government, and asserts 

 tuat the award of the concurring Commissioners 

 must be held, upon necessary reasoning, to have mea- 

 sured and deducted this great value of free market 

 from the appraisement of the concession of free fish- 

 ing to us, made by them under Article 18, this Gov- 

 ernment will expect the more ready acceptance by 

 her Majesty's Government of the proposition that 

 these concurring Commissioners, in their award, 

 mistook the subject submitted by Article 18 to their 

 pecuniary measurement, and exceeded the authority 

 under which the Commission acted. 



In inviting a full exposition of the views of her 

 Majesty's Government upon the matter, as now 

 brought into consideration between the two Govern- 

 ments, you will say to Lord Salisbury that, wholly 

 insupportable as the pecuniary measure of the single 

 and fragmentary matter, not embraced in the diplo- 

 matic concurrence of the High Joint Commissioners, 

 and thus left by them to impartial appraisement, 

 seems to this Government, it will receive and ex- 

 amine with entire candor any opposing views in 

 maintenance of the validity of the award which her 

 Majesty's Government may present. 



Lord Salisbury in his reply, near the close 

 of the year, proceeds as follows : 



It was not without a most thorough and laborious 

 investigation of the question submitted to their ap- 

 preciation that the majority of the Commissioners 

 arrived at the decision quoted, and it must be ob- 

 served that the whole proceedings were held in strict 

 conformity with the terms of the treaty of Washing- 

 ton. While the award was given by a majority 

 of the Commissioners in the very terms contained 

 in Article 22 of the treaty, there is nothing upon the 

 face of the award which gives any countenance to 

 the supposition that the Commissioners traveled be- 

 yon 1 the limits assigned by the treaty. Mr. Evarts's 

 argument in favor of this contention is entirely de- 

 duced from what he considers to be the magnitude 

 of the sum awarded, and he concludes this branch 

 of his argument by estimating on the various hy- 

 potheses the profit which the United States fisher- 

 man is likely to have made from the mackerel which 

 he has probably caught on the other side. He esti- 

 mates at very high value the profit which British 

 fishermen have derived from the opening of the 

 market with the United States, and concludes the 

 sum fixed by the award is so much larger than these 

 considerations would have justified, and that the 

 United States Government can only explain its mag- 

 nitude on the assumption that the Commission had 

 mistaken the question that was referred to it. These 

 very matters were examined at great length and 

 with conscientious minuteness by the Commission- 

 ers, whose award is under discussion. The deci- 

 sions of the majority were given after a full hearing 

 of all the considerations that either side was able to 

 advance, and that decision within the limits of the 

 matter submitted to them is under the treaty with- 

 out appeal or argument. Mr. Evarts attempts to 

 review their award upon a question of fact and pe- 

 cuniary computation re ferred to them. He contends 

 that the sum awarded is excessive, and that therefore 

 the award must have been arrived at by some ille- 

 gitimate process, but argues against the validity of 

 the award solely on the ground that the conclusion 

 arrived at by the arbitrators on every point referred 

 to them is erroneous, and is in effect the same thing 

 as to dispute the judgment which they have formed 

 upon the evidence. Her Majesty's Government does 

 not feel that it is their duty to put forward any 

 opinion adverse or favorable to the decision which a 

 majority of the Commissioners have passed on affi- 

 davits and depositions which they had to consider, 

 l.iey can not be judges of appeal in this cause, be- 



cause they have been litigants. As litigants they 

 have expressed a view upon facts which they have 

 felt bound in that capacity to maintain. Their 

 computations have totally differed in method and in 

 result from those which the American counsel sus- 

 tained, 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 complete antagonism to this. They have been of 

 the opinion, and have insisted with all force of argu- 

 ment their agents could command, that the five mil- 

 lions was a legitimate compensation which under the 

 treaty was their due. 



A majority of the Commissioners decided to re- 

 duce that claim nearly by two thirds of the saving 

 formally engaged, and to submit the matter to this 

 arbitration. They do not think it is open to inquire 

 how it is that the Commission came to form an opin- 

 ion upon their claims so widely different from tneir 

 own. Her Majesty's Government can only accept 

 now, as on similar occasions they have accepted be- 

 fore, the decision of the tribunal to which they have 

 solemnly and voluntarily submitted, At the close 

 of his dispatch Mr. Evarts refers to the considera- 

 tion which he ought not to pass over without obser- 

 vation, though he does not place it 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 ; that in the 

 treaty of Washington no stipulation in this case is 

 made that the decision of a majority is to be a bind- 

 ing opinion. That according to the treaty of Wash- 

 ington the Fishery Commission was incapable of 

 pronouncing a decision unless its members were 

 unanimous, is one in which her Majesty's Govern- 

 ment are unable to concur. It is 'not difficult to 

 produce from text-books, even of very recent date, 

 the authority for the doctrine that in international 

 arbitration the majority of the arbitrators binds the 

 minority unless the contrary is expressed. I am not 

 aware of any of the authorities who, in respect to 

 the international arbitration, could be quoted in a con- 

 trary sense, and it would not be difficult to show, by 

 reference to cases in American as well as in English 

 courts, that the same rule has always been judicially 

 applied in case of arbitration of a public nature. The 

 language and stipulations of the treaty itself, so far 

 as they are explicit upon the subject, point to a simi- 

 lar conclusion. The suggestion that the framers of 

 the treaty meant by their silence to prescribe a mode 

 of proceeding which, before the tribunal thus con- 

 stituted, is unexampled, can only be accepted on the 

 hypothesis that they were deliberately preparing an 

 insoluble controversy for those by whom the treaty 

 was to be executed. 



Lord Salisbury enters into a lengthy argu- 

 ment in support of his position, and concludes 

 as follows : 



If a jury were constituted on the principle thnt 

 the plaintiff should choose one third and the defend- 

 ant another third, very few persons would be found 

 to expose themselves to the cost of action at law. 

 Had it been known five years ago that an award 

 would be prevented by the dissent of one of the 

 members of the arbitration, constituted on the same 

 principle, though 1 do not venture to conjecture 

 what the course of the United States Government 

 would have been, I feel confident that England 

 would have declined to enter upon so unfaithful a 

 litigation. Her Majesty's Government may appeal 

 to the cogent proof that in accepting this arbitration 

 they did not contemplate that the award was likely 

 to be prevented by the requirement of unanimity, 

 believing in the agreement with a majority of the 

 Commission that they were to be heavy losers by 

 exchange of concessions contained in Articles 15, 

 19, and 21 of the treaty. They nevertheless have 

 for five years allowed those concessions to come into 

 force, trusting to the consideration which the Com- 



