APPENDICES TO ORAL ARGUMENTS. 2307 



sion than the assumption that, haying resolved to leave one particular 

 case to a mode of arbitration which was entirely novel, and wholly 

 unlikely to issue in a decision, they carefully abstained from the use 

 of any words to indicate the unusual resolution they had formed. 



It further appears to Her Majesty's Government that a distinct 

 intimation of the true meaning of the Joint High Commission in re- 

 spect to the Fishery Award is to be found in the composition of the 

 Tribunal which they adopted. This constitution is consistent with 

 the intention that the majority should decide; it is not consistent 

 with the supposed intention that the dissent of one Commissioner 

 should prevent any decision from being pronounced. The XXIIIrd 

 article of the treaty makes the following provision for the constitu- 

 tion of the Tribunal : 



" The Commissioners referred to in the preceding article shall be appointed 

 in the following manner, that is to say : 



" One Commissioner shall be named by Her Britannic Majesty, one by the 

 President of the United States, and a third by Her Britannic Majesty and the 

 President of the United States conjointly ; and in case the third Commissioner 

 shall not have been so named within a period of three months from the date 

 when this article shall take effect, then the third Commissioner shall be named 

 by the representatives at London of His Majesty the Emperor of Austria and 

 King of Hungary. In case of the death, absence, or incapacity of any Com- 

 missioner, or in the event of any Commissioner omitting or ceasing to act, the 

 vacancy shall be filled in the manner hereinbefore provided for making the 

 original appointment, the period of three months in case of such substitution 

 being calculated from the date of the happening of the vacancy. 



" The Commissioners so named shall meet in the City of Halifax, in the 

 Province of Nova Scotia, at the earliest convenient period after they have been 

 respectively named, and shall, before proceeding to any business, make and 

 subscribe a solemn declaration that they will impartially and carefully examine 

 and decide the matters referred to them to the best of their judgment, and 

 according to justice and equity ; and such declaration shall be entered on the 

 record of their proceedings. 



" Each of the High Contracting Parties shall also name one person to attend 

 the commission as its agent, to represent it generally in all matters connected 

 with the commission." 



This is the ordinary form of arbitration in which each side chooses 

 an arbitrator, and 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 his impartiality are unmeaning, 

 if the adverse vote of one of the arbitrators may deprive his decision 

 of all force and effect. 



In ordinary phraseology the decision of a body of members means 

 a decision come to by a majority of voices. In the common use and 

 understanding of language, this is the interpretation which suggests 

 itself to every reader, when it is stated that a number of men have 

 expressed an opinion or have arrived at a determination. The re- 

 quirement of unanimity is the exception, and 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 diametrically opposed to that 

 adopted in the case of the Fishery Commission. Instead of a pro- 

 vision that two-thirds shall be named by the parties to the suit, the 

 most elaborate precautions are taken that the whole body shall 

 1394 be unbiassed. It is obvious that when unanimity is to be re- 

 quired, when any one member of the deciding body is to have 

 the power of nullifying all the proceedings and preventing a de- 

 cision, such an arrangement will only be endurable on the condition 



