APPENDICES TO ORAL ARGUMENTS. 2297 



that " a majority of the assessors in each case shall be sufficient to a 

 decision." 



3. A commission of three members to determine reciprocal claims 

 between the two countries arising during the Civil War. Article 

 13 provides that " a majority of the Commissioners shall be suffi- 

 cient for an award in each case." 



_ 4. The Halifax Commission, composed of three members, undis- 

 tinguished, among themselves, by any description of umpirage to 

 either, and with no provision in any form for an award by less than 

 the whole number. The treaty expressly accepts awards, signed by 

 the assenting Arbitrators, or Assessors, or Commissioners under the 

 other articles, while, in the case of the Halifax Commission, this 

 provision takes the place of such acceptance : " The Case on either 

 side shall be closed within a period of six months from the date of 

 the organization of the commission, and the Commissioners shall be 

 requested to give their award as soon as possible thereafter." 



The argument from this comparison is obvious. The high con- 

 tracting parties possessed a common system of jurisprudence, accord- 

 ing to which a reference to arbitrators ex vi termini required the 

 award to be the act of the arbitrators, that is, of all of them. The 

 parties to an arbitration, public or private, might accord to any 

 lesser number the power of award, but express stipulations in the 

 submission alone could carry that authority. Acting in full view of 

 this rule, to which a desired exception needed to be expressed, in 

 three cases, in the same deliberate and solemn instrument, the high 

 contracting parties imparted the authority to a majority by careful 

 and solicitous provisions to that end. In the case of the Halifax 

 Commission, last in the order of the treaty, and with the previous 

 arrangements, in this regard, in their minds and under their eyes, 

 this power is withheld. It is impossible, because it is plainly irra- 

 tional, to say that a treaty provision containing power to a majority 

 to bind, and a treaty provision expressing no such authority, mean 

 one and the same thing. The high contracting parties have excluded 

 any such conclusion, by the sedulous discrimination which the text of 



the treaty discloses. 



1388 To the countervailing suggestion that this variation from 

 the system of the treaty in the case of the Halifax Commission 

 is most reasonably accounted for by inadvertence on the part of the 

 High Joint Commissioners, the answer is obvious. If either of the 

 high contracting parties, should so allege, which it certainly would 

 not do without much deliberation, the suggestion would not affect the 

 argument as to the meaning of the treaty as it stood, but would 

 be in the nature of an 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 inadver- 

 tence in the negotiations, never to be lightly indulged in, overlooks 

 an adequate and presumptively the real reason for the requirement 

 of unanimity in the case of 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 ref- 

 erences of the treaty, two circumstances distinguish them from that 

 subjected to the award of the Halifax Commission. First, they were 

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