Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 2, 1878
No. 197.
Mr. Welsh
to Mr. Evarts.
London, November 9, 1878. (Received November 20.)
Sir: I received late in the evening of the 7th instant Lord Salisbury’s reply to your dispatch No. 145, of the 27th of September, relating to the award of the Halifax commision. I sent you by cable yesterday, in cipher, such an abstract of this paper as the limited time allowed us enabled us to prepare, and I now inclose herewith two printed copies of the letters, for which we are indebted to the courtesy of the foreign office.
I have, &c.,
The Marquis of Salisbury to Mr. Welsh.
Sir: Her Majesty’s Government have given their attentive consideration to the dispatch relating to the proceedings of the Halifax fisheries commission, addressed to you by Mr. Evarts, the Secretary of State of the United States, a copy of which you were good enough to place in my hands on the 10th ultimo; and I have now the honor to make the following observations in reply, which I shall feel greatly obliged by your communicating to Mr. Evarts with the least possible delay:
Her Majesty’s Government fully appreciate the frankness with which Mr. Evarts has requested you to communicate to them the views of the Government of the United States on this question, and it is their desire to reciprocate in the fullest degree the wish expressed by Mr. Evarts to come to a complete and explicit understanding between the two governments as to the conformity of the award made by the commission to the terms of the treaty of Washington.
I must, in the first instance, recall to your recollection the circumstances which led to the organization of the Halifax commission.
[Page 317]The reciprocity treaty of the 5th June, 1854, between Great Britain and the United States, terminated in 1866, not from any desire on the part of Her Majesty’s Government to put a period to its stipulations, but in consequence of the notice provided for in Article V of that treaty having been given by the United States Government. The mutual privileges in respect to free fishing and free trade in certain productions, which had under its operation been enjoyed by the inhabitants of the United States and of Her Majesty’s North American possessions, thus came to an end. The effect of this determination of the reciprocity treaty was to revive the difficulties incidental to the fisheries question; difficulties so well known to both governments, that it is needless for me to enlarge upon them on the present occasion.
The danger, however, of collision between the fishermen of the two nations began to manifest itself soon after the termination of the reciprocity treaty, and Her Majesty’s Government were anxious to come to a speedy and satisfactory solution of the question. With this view, Her Majesty’s minister at Washington addressed, on the 26th January, 1871, a note to Mr. Fish, in which he stated that Her Majesty’s Government deemed it of importance to the good relations which they were ever anxious should subsist and be strengthened between the United States and Great Britain that a friendly and complete understanding should be come to between the two governments as to the extent of the rights belonging to the citizens of the United States and Her Majesty’s subjects, respectively, with reference to the fisheries on the coasts of Her Majesty’s possessions in North America, and as to any other questions between them affecting the relations of the United States towards those possessions.
As the consideration of these matters would, however, involve investigations of a somewhat complicated nature, and as it was very desirable that they should be thoroughly examined, he was directed by Lord Granville to propose to the Government of the United States the appointment of a Joint High Commission, which should be composed of members to be named by each government, should hold its sessions at Washington, and should treat of and discuss the mode of settling the different questions arising out of the fisheries, as well as all those affecting the relations of the United States toward Her Majesty’s possessions in North America.
To this note Mr. Fish replied on the 30th January of the same year, and while stating that the President shared with Her Majesty’s Government the appreciation of the importance of a friendly and complete understanding between the two governments with reference to the subjects specially suggested for the consideration of the proposed Joint High Commission, he added that it would be desirable to include in the deliberations of that commission a consideration of the other questions then at issue between the two governments, particularly those known as the “Alabama” claims.
It was thus, owing to the importance attached by Her Majesty’s Government to the fisheries question, and to their anxiety to come to a satisfactory settlement of the difficulties connected with it, that the negotiations were commenced which led to the organization of the Joint High Commission and ultimately to the treaty of Washington. A large portion of the deliberations of that commission was devoted to the difficult and long-standing question now under consideration, and after many proposals and counter-proposals, including offers on the part of the United States commissioners to grant commercial privileges far in excess of the mere remission of duty on fish and fish-oil, in order that they might acquire for United States fishermen unrestricted access to the inshore waters of British North America, Articles XVIII to XXV and XXXII and XXXIII were at length agreed to, and constitute the authority under which the Halifax commission acted.
Article XXII provided that—
“Inasmuch as it is asserted by the Government of Her Britannic Majesty that the privileges accorded to the citizens of the United States under Article XVIII of this treaty are of greater value than those accorded by Articles XIX and XXI of this treaty to the subjects of Her Britannic Majesty, and this assertion is not admitted by the Government of the United States, it is further agreed that commissioners shall be appointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of this treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIII of this treaty; and that any sum of money which the said commissioners may so award shall be paid by the United States Government, in a gross sum, within twelve months after such award shall have been given.”
The acts necessary to enable the several articles of the treaty relating to the fisheries to be carried into effect were passed by the Imperial Parliament of Great Britain on the 6th August, 1872; by the Parliament of Canada on the 14th June, 1872; by the legislature of Prince Edward Island (which did not at that time form part of the Dominion) on the 29th June, 1872; by the colony of Newfoundland on the 28th March, 1874; and by the United States Congress on the 25th February, 1873. So scrupulous, moreover, were Her Majesty’s Government that United States citizens should enjoy [Page 318] in the fullest degree the benefits secured to them under the treaty, that United States fishermen were admitted to the practical use of the inshore fishing grounds in advance of the formal legislative acts necessary for that purpose, and this concession was acknowledged by the Government of the United States as a “liberal and friendly act.” Her Majesty’s Government consider that it is important, in examining this subject, to bear in mind the distinction between that part of the treaty relating to fishery rights in British waters and the part relating to claims then pending on other heads. As regards the fishery rights, the citizens of the United States were, by the treaty, put into actual possession and enjoyment of them. That enjoyment has been had and cannot be recalled. “Whether any and what sum was to be paid by the Government of the United States for the rights thus conceded was to be determined, and determined without appeal, by the tribunal constituted under the treaty.
United States fishermen having entered into the enjoyment of the privileges thus secured to them, it became necessary to take immediate steps for the constitution of the commission appointed to meet at Halifax in the manner prescribed by the treaty.
Various circumstances, however, with which your government are familiar, contributed to occasion delay in the complete organization of the commission, and it was not, therefore, until the 1st March, 1877, that an identic note was addressed to the Austro-Hungarian ambassador in London by the Earl of Derby and by the United States minister in London, requesting that his excellency would be pleased to name the third commissioner in the manner provided for by Article XXIII of the treaty. His excellency thereupon named M. Maurice Delfosse, the Belgian minister at Washington, and apprised the governments of Great Britain, the United States, and Belgium of the selection thus made.
Her Britannic Majesty’s Government having previously appointed Sir Alexander T. Gait to be their commissioner, and Francis Clare Ford, esq., to be their agent, and the Government of the United States having similarly appointed the honorable Ensign H. Kellogg to be their commissioner, and the honorable Dwight Foster to be their agent, the constitution of the commission was complete in accordance with the terms of the treaty; and after previous communication between the three commissioners, the 15th June, 1877, was fixed for the first day of meeting.
The commission was accordingly organized by holding the first conference at the city of Halifax on that day, when all the commissioners were present and produced their respective powers. The honorable Dwight Foster and Mr. Ford were also present as agents of their respective governments.
M. Delfosse was then, upon the proposal of the United States commissioner, elected president of the commission, and a secretary having been appointed by him, the three commissioners proceeded, in accordance with the XXIIId article of the treaty, to make and sign a solemn declaration that they would impartially and carefully examine and decide the matters referred to them, to the best of their judgment and according to justice and equity.
The commission, then, after a meeting on the next day for the purpose of approving and signing the protocol of the previous day’s proceedings, adjourned until the 28th day of July, 1877.
The commission having met, pursuant to adjournment, on the 28th day of July, the United States agent named the counsel retained on behalf of the United States, and at the next conference, held on the 30th day of July, the case of Her Majesty’s Government was opened, and was concluded on the 18th day of September; that of the United States of America was opened on the 19th of the same month, and closed on the 24th day of October.
It is unnecessary that I should here recite each step in these lengthened proceedings; it will be sufficient to note that eighty-four witnesses in all were examined on behalf of Her Britannic Majesty’s Government, and seventy-eight on the part of the United States of America. These witnesses were subjected to the most searching cross-examination by counsel of the greatest ability; and amongst those examined were to be found the names of many persons who, from their special knowledge of the subject, both practically and generally, were well qualified to express an opinion, and whose evidence was entitled to the greatest weight in the investigation of the matter.
Three hundred and nineteen affidavits were produced in support of the case of Her Britannic Majesty’s Government, and two hundred and eighty in support of that of the United States; the deponents comprising those who were also in a position to give valuable and convincing testimony with regard to the fisheries, but who, from various causes, were unable to give oral evidence before the commission.
A voluminous mass of documentary and statistical matter was produced and submitted to the commission on either side, and about fourteen entire days were devoted to the arguments of counsel upon the whole case.
The commission held in all seventy-eight sittings, of about four hours’ duration each, and the proceedings terminated on the 23d day of November, 1877, by the announcement of the following award:
“The undersigned commissioners, appointed under Articles XXII and XXIII of the [Page 319] treaty of Washington of the 8th May, 1871, to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of said treaty, the amount of any compensation which in their opinion ought to be paid by the Government of the United States to the Government of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States, under Article XVIII of the said treaty;
“Having carefully and impartially examined the matters referred to them according to justice and equity, in conformity with the solemn declaration made and subscribed by them on the fifteenth day of June, one thousand eight hundred and seventy-seven;
“Award the sum of five millions five hundred thousand dollars in gold, to be paid by the Government of the United States to the Government of Her Britannic Majesty, in accordance with the provisions of the said treaty.
“Signed at Halifax this twenty-third day of November, one thousand eight hundred and seventy-seven.
“MAURICE DELFOSSE.
“A. T. GALT.”
“The United States commissioner is of opinion that the advantages accruing to Great Britain under the treaty of Washington are greater than the advantages conferred on the United States by said treaty, and he cannot, therefore, concur in the conclusions announced by his colleagues.
“And the American commissioner deems it his duty to state further that it is questionable whether it is competent for the board to make an award under the treaty, except with the unanimous consent of its members.
“E. H. KELLOGG,
“Commissioner.”
It was thus assuredly not without the most thorough and laborious investigation of the question submitted to their appreciation, that a majority of the commissioners arrived at the decision above quoted; and it must be observed that the whole of the proceedings were held in strict conformity with the terms of the treaty of Washington, while the award was given by a majority of the commissioners in the very terms contained in Article XXII of the treaty.
In the dispatch which has been communicated to Her Majesty’s Government, Mr. Evarts seeks to invalidate the award, which is the result of this exhaustive investigation, upon the ground that, in estimating the claims of Great Britain, the commissioners must be assumed to have taken into consideration circumstances which the treaty of Washington had not referred to them. There is nothing upon the face of the award which gives any countenance to the supposition that the commissioners traveled beyond the limits assigned to them by the treaty. Mr. Evarts’s argument in favor of this contention is entirely deduced from what he considers to be the magnitude of the sum awarded. It is, he contends, so far in excess of what the United States Government believe to be the true solution of the problem submitted by the treaty, that some factor which the treaty has not recognized, must necessarily, in his opinion, have been imported into the calculation.
Mr. Evarts proceeds to give in detail the considerations by which, in his judgment, the result arrived at should be tested. He gives his reasons for believing that mackerel is the only fish to whose capture in the waters opened by Great Britain any value should be assigned, and that no account is to be taken of herring, halibut, cod, hake, pollock, or bait fishes. He computes the number of mackerel which the United States fishermen have caught within a three-mile line from the shore during the years of the treaty period which have expired, and infers from it the number which they are likely to catch within the same area during the interval that remains; and he concludes this branch of his argument by estimating, on various hypotheses, the profit which the United States fisherman is likely to have made from the mackerel which he has probably caught. On the other side, he estimates at a high value the profit which the British fishermen have derived from the opening of the markets of the United States; and concludes that the sum fixed by the award is so much larger than these considerations would have justified, that the United States Government can only explain its magnitude on the assumption that the commission has mistaken the question that was referred to it.
That Mr. Evarts’ reasoning is powerful it is not necessary for me to say; nor, on the other hand, will he be surprised to hear that Her Majesty’s Government still retain the belief that it is capable of refutation. But, in their opinion, they would not be justified in following him into the details of his argument. These very matters were examined at great length and with conscientious minuteness by the commission whose award is under discussion. The decision of the majority was given after 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, without appeal. The argument of Mr. Evarts amounts to a review of their award upon the questions of fact and of pecuniary computation referred to them. He contends that the sum awarded is excessive, and that therefore the award must have been arrived at by some illegitimate [Page 320] process. But to argue against the validity of an award, solely on the ground that the conclusion arrived at by the arbitrators on the very point referred to them is erroneous, is in effect the same thing as to dispute the judgment which they have formed upon the evidence.
Her Majesty’s Government do not feel that it is their duty to put forward any opinion, adverse or favorable, to the decision which the majority of the commissioners have passed upon the affidavits and depositions which they had to consider. Her Majesty’s Government could not do so without undertaking the same laborious investigation as that which was performed by the commission, a task for which the interval which has been left between October 10, the day on which Mr. Evarts’s dispatch was delivered to me, and November 23, the day on which the payment awarded is to be made, would certainly not suffice.
But they are precluded from passing in review the judgment of the commission by a far more serious disqualification. They cannot be judges of appeal in this cause, because they have been litigants. As litigants they have expressed the view upon the facts which they felt bound in that capacity to maintain. Their computations have been totally different in method and result from those which the American counsel sustained, 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 his. They have been of opinion, and have insisted with all the force of argument that their agents could command, that $15,000,000 was the legitimate compensation which, under the treaty, was their due. The majority of the commissioners has decided to reduce that claim nearly by two-thirds. Having formally engaged to submit the matter to this arbitration, they do not think that it is open to them to inquire how it was that the commission came to form an opinion upon their claims so widely different from their own. Still less can they admit that either side is entitled to treat this difference as ground for assuming that the arbitrators have imported into their judgment considerations which the treaty did not authorize them to entertain. Her Majesty’s Government can only accept now, as on similar occasions they have accepted before, the decision of the tribunal to which they have solemnly and voluntarily submitted.
At the close of his dispatch Mr. Evarts refers to a consideration, which I ought not to pass over without observation, 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, and that in the treaty of Washington no stipulation is, in this case, made that the decision of the majority is to be binding.
The opinion that, according to the treaty of Washington, the fishery commission was incapable of pronouncing any decision unless its members were unanimous, is one in which Her Majesty’s Government are unable to concur.
It is not difficult to produce from text-books, even of very recent date, authority for the doctrine that in international arbitrations the majority of the arbitrators binds the minority unless the contrary is expressed.
“Halleck’s International Law,” edited by Sir Sherstone Baker, 1878, says (chap. xiv, sec. 6):
“The following rules, mostly derived from the civil law, have been applied to international arbitrations where not otherwise provided in the articles of reference. If there be an uneven number the decision of a majority is conclusive.”
Bluntschli (sect. 493) says:
“La décision est prise à la majorité des voix.”
Calvo (I, p. 791) lays down:
“A défaut d’obligations nettement traces dans l’acte de compromis, les arbitres, pours s’acquitter de leur mandat, se guident d’après les regles tracées par le droit civil: ainsi ils doivent procéder conjointement, discuter et délibérer en commun, décider à la majorité.”
I am not aware of any authorities who, in respect to international arbitrations, could be quoted in the contrary sense; and it would not be difficult to show, by a reference to cases in the American as well as in the English courts, that the same rule has always been judicially applied in the case of arbitrations of a public nature.
The language and stipulations of the treaty itself, so far as they are explicit upon the subject, point to a similar conclusion. Mr. Evarts, indeed, argues that the requirement of unanimity was intended, because, while it is not disclaimed in the case of the fishery lights, it is disclaimed in the case of three other arbitrating tribunals set up by the Treaty. It is evident that, at most, this omission would have left the matter in uncertainty. The suggestion that the framers of the treaty meant by their silence to prescribe a mode of proceeding which, before a tribunal thus constituted, 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.
It appears to me that if the language employed in the case of the other tribunals set up by the treaty be examined carefully a more probable solution of the difficulty [Page 321] may be found. The words used in each case are somewhat peculiar, and lend themselves to the supposition that what the draughtsman was thinking of when he employed them was not the question whether unanimity should or should not be required, but under what circumstances the tribunal should be held to be fully constituted for the purpose of giving a decision. It was obvious that in the course of a protracted and manifold inquiry, in which questions would constantly come up for decision, it was a matter of great practical importance to lay down whether for each decision the presence of the whole tribunal was required, or whether any condition might be prescribed under which, in spite of the absence of any one member, from illness or other cause, a valid decision might yet be given.
The difficulty of conducting, on the more rigid rule, a lengthened inquiry, involving frequent decisions, is a matter of ordinary experience. A common mode of escape from it is to fix some number, short of the entire complement, as the quorum or minimum number which must be present to give validity to a decision. The framers of the Washington treaty adopted an arrangement somewhat different in form, but similar in effect. They laid down that the decisions should be valid so long as they were adopted by a number not less than the majority of the whole body. That this is the meaning of the three passages in which the word majority appears may be gathered both from the expressions themselves and from the connection in which they are found. The following is a portion of the first paragraph of Article XIII on the commission of civil war claims:
“They shall be bound to receive and consider all written documents or statements which may be presented to them by or on behalf of the respective governments in support of, or in answer to, any claims; and to hear, if required, one person on each side, on behalf of each government, as counsel, or agent for such government, on each and every separate claim. A majority of the commissioners shall be sufficient for an award in each case.”
Here it is evident that the multiplicity of the claims was the matter specially under consideration; and that “the sufficiency of a majority of the commission for an award” was stipulated with a view to the possible delay which the requirement of a full tribunal in each case might cause. That the majority should be sufficient for an award in the case of one member being absent was a rule which it was necessary to lay down; for where frequent decisions are not required, provisions of the kind are not customary. On the other hand, it is a universal practice that upon public arbitrations thus constituted, in case of difference of opinion, the majority shall prevail. It is, therefore, consistent with sound principles of interpretation, to assume that the phrase was meant to apply to the point on which a provision was necessary, and not to the point on which a provision was superfluous.
The same reasoning is applicable to the case of the Geneva tribunal, which had to decide on the alleged failure of neutral duty in Great Britain as to seventeen different ships, besides questions arising in respect to damages. The board of assessors which was provided in case the Geneva tribunal had not awarded a gross sum was a commission of claims which would have had to adjudicate upon a very large number of individual losses. In these cases, therefore, as in that which has been just adverted to, the Joint High Commission took a natural and a judicious course in providing that a decision should not be invalid by reason of the absence of a member of the tribunal, so long as a majority concurred in the award.
On the other hand, no such provision was necessary in the case of the Halifax commission, which, beyond questions of procedure, had but one issue before it, and but one decision to pronounce. In this case it was not necessary to lay down, as in the other cases, that “a majority of the commissioners should be sufficient for an award,” or that “all questions should be decided by a majority of all the arbitrators.”
This construction of the treaty appears to Her Majesty’s Government more natural and more respectful to the Joint High Commission than the assumption that, having 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 respect 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 XXIIId article of the treaty makes the following provision for the constitution 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 [Page 322] effect, then the third commissioner shall be named by the representative at London of His Majesty the Emperor of Austria and King of Hungary. In case of the death, absence, or incapacity of any commissioner, 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 requirement 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 provision that two-thirds shall be named by the parties to the suit, the most elaborate precautions are taken that the whole body shall be unbiased. It is obvious that when unanimity is to be required, when any one member of the deciding body is to have the power of nullifying all the proceedings and preventing a decision, such an arrangement will only be endurable on the condition that each member shall be so chosen as to be as far as possible free from any inclination to exercise that power on one side rather than on the other. If a jury were constituted on the principle that the plaintiff should choose one-third of it and the defendant another third, very few persons would be found to expose themselves to the cost of an 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 an arbitration constituted on the same principle, though I 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 unfruitful a litigation.
Her Majesty’s Government may appeal to a cogent proof that in accepting this arbitration they did not contemplate that the award was liable to be prevented by the requirement of unanimity. Believing, in agreement with the majority of the commission, that they were heavy losers by the exchange of concessions contained in Articles XVIII, XIX, and XXI of the treaty, they nevertheless have for five years allowed those concessions to come into force, trusting to the compensation which the commission would give to them. That they have (done so is a sufficient proof that they did not anticipate a construction of the treaty which would make the delivery of an award almost impossible. A valuable property has actually passed into the enjoyment of others, and cannot be recalled. The price to be paid for it was to be determined later by a tribunal agreed upon between the parties. Is it conceivable that they should have deliberately constituted a tribunal for this purpose, in which a decision could be wholly prevented by the dissent of a member nominated by the party to whom the property had passed?
Reciprocating cordially the courteous and friendly sentiments by which Mr. Evarts’s language is inspired, Her Majesty’s Government feel confident that the United States Government will not, upon reflection, see in the considerations which have been advanced any sufficient reason for treating as a nullity the decision to which the majority of the commission have arrived.
I have, &c.,