AWARD OF THE FISHERY COMMISSION. 1585 



decision, and his remarks were made simply tbat Mr. Dana's argument 

 might not be considered as having been passed on the part of the coim- 

 el tor the Cro wn sub silentio. 

 Mr. FOSTER asked for an early decision on the motion. 



The Commission retired to deliberate, and on their return the Presi- 

 dent read the following decision : 



The Commission having considered the motion submitted by the Agent of the United 

 States at the conference held on the 1st instant, decided 



That it is not within the competence of this tribunal to award compensation for 

 commercial intercourse between the two countries, nor for the purchasing bait, ice, 

 supplies, &c., &c., nor for the permission to transship cargoes in British waters. 



Sir ALEXANDER T. GALT. Mr. President, as this Commission has been 

 unanimous on this question, Idesire, with the permission of my colleagues, 

 but without committing them to the same line of argument which has con- 

 vinced myself, to state the grounds upon which I feel it my duty to acqui- 

 esce in the decision. I listened with very great pleasure to the extremely 

 able arguments made on both sides, and I find that the effect of the mo- 

 tion, and of the argument which has been given upon it, is to limit the 

 power of this tribunal to certain specified points. This definition is un- 

 doubtedly important in its consequences. It eliminates from the consid- 

 eration of the Commission an important part of the case submitted on 

 behalf of Her Majesty's Government; and this is undoubtedly the case 

 so far as this part forms a direct claim for compensation ; but, at the 

 same time, it has the further important effect that it defines and limits 

 the rights conceded to the citizens of the United States under the Treaty 

 of Washington. Now, I have not been insensible to the importance of 

 the considerations that have been addressed to us by the counsel for the 

 Crown in reference to the inconvenience that may arise from the decis- 

 ion at which this tribunal has arrived. I can foresee that, under certain 

 circumstances, those inconveniences may become exceedingly great, but 

 I cannot resist the position taken by the counsel of the United States in. 

 stating that, if such inconveniences arise, they are matters which prop- 

 erly iall within the control and judgment of the two governments, and 

 not within that of this Commission. On the other hand, I cannot fail to 

 see that, while this is admitted, a remote and contingent inconvenience, 

 a very important difficulty, and one of a very serious character, would 

 arise if from any cause this Commission were to exceed the powers which 

 are given to the Commissioners under the Treaty of Washington. 



The difficulty would at once arise that any award whatever which it 

 made, be it good or bad, be it favorable to the one party or to the other, 

 would have been vitiated by our having acted ultra vires. I do not find, 

 either, that there would be any ready escape from such a position. The 

 treaty affords no machinery by which this question in regard to the fish- 

 eries can be adjudicated upon if this Commission should, from any unfor- 

 tunate cause, be allowed to lapse; therefore, with regard to the two 

 inconveniences in question, the one which strikes at the root of the whole 

 treaty is that which ought to weigh with me, if I were placed in such a 

 position as to be obliged to weigh such inconveniences ; but, as I shall 

 state before I conclude, there are other and stronger considerations pres- 

 ent to my mind. I have in common with my colleagues entered into a 

 solemn obligation to decide judicially upon all questions coming before 

 this tribunal, and I feel it incumbent upon me, therefore, to give every 

 possible weight, every due weight, to whatever may be said on either 

 side, and I certainly have hitherto endeavored to do so, and I have done 

 so in this case. I shall endeavor to pursue the same course, acting under 

 100 P 



