as made public by the commissioners, would be communicated to Congress. On the 11th of March 1878 the Senate, on motion of Mr. Blaine, adopted a resolution requesting the President, if it should not in his judgment be incompatible with the public interest, to communicate to that body copies of all correspondence between the United States and Great Britain, in regard to the selection of Mr. Delfosse as third commissioner. A response to this resolution was made on the 21st of March, when certain correspondence relating to the subject of the inquiry was communicated to the Senate. As this correspondence disclosed the objections made by Mr. Fish in 1873 to Mr. Delfosse's selection, it formed the subject of much comment both in Congress and in the public press; but it did not reveal the steps by which the appointment was finally brought about. Of this circumstance Mr. Delfosse formally complained, alleging that by the incomplete publication of the papers an injury had been done both to his government and to himself. On the 27th of May the Senate passed another resolution, requesting copies of all correspondence not theretofore submitted, and of all memoranda and minutes in the possession of the government relating to Mr. Delfosse's selection. To this resolution the President responded on the 17th of June, transmitting a number of papers in which the circumstances of the appointment by the Austrian ambassador were disclosed.2 Documents and Proceedings of Commission. The documents and proceedings of the commission were communicated by the President to Congress on the 17th of May 1878 with a recommendation that the sum necessary to pay the award be appropriated, but that the Executive be invested with such discretion in regard to its payment as, in the wisdom of Congress, the public interests might seem to require. Accompanying the message of the President there was a report of the Secretary of State, Mr. Evarts, in which the proceedings of the commission were reviewed, and in which it was pointed out that as the award was payable on or about the 23d of the ensuing November, there would be abundant time before the expiration of that period to bring to the attentention of the British Government the sentiments of the United States, as they should be expressed by Congress, on the subject of the award and its payment and the measure of value Sen. Ex. Doc. 44, 45 Cong. 2 sess. 2 Sen. Ex. Doc. 100, 45 Cong. 2 sess. Appropriation for Representations of of the fishery privilege involved in it. In the Senate the mes sage was referred to the committee on Foreign Payment of Award. Relations, which, while reporting in favor of the payment of the award, recommended that representations should be made to the British Government against its justice and validity. This recommendation was adopted by Congress, and the sum of $5,500,000 was "placed under the direction of the President of the United States with which to pay the government of Her Britannic Majesty the amount awarded by the Fisheries Commission, lately assembled at Halifax, in pursuance of the Treaty of Washington, if, after correspondence with the British Government on the subject of the conformity of the award to the requirements of the treaty, and to the terms of the question thereby submitted to the Commission, the President shall deem it his duty to make the payment without further communication with Congress."1 On the 27th of September 1878 Mr. Evarts communicated the views of the United States on the subject of the award to Mr. Welsh, the American minister in London, and directed him to present them to the British Government by delivering a copy of his instructions to Lord Salisbury, then secretary of state for foreign affairs. Adverting to the fact that the arrangement of the Treaty of Washington as to the fisheries was terminable at the pleasure of either party in less than seven years, and that upon such termination the award would have exhausted its force as compensation for the privileges under the treaty, Mr. Evarts said that if the United States, by silent payment of the award, should seem to have recognized the principles on which it might then be said by Her Majesty's government to have proceeded, it would have prejudiced its own rights, and seem to have concealed objections which it should have openly avowed. It was, he said, to be regretted that the protocols of the commission made no record of the steps by which the majority on the one hand reached their award, and the dissenting commissioner on the other hand arrived at a result so widely different. In the view of the United States there was little reason to doubt that if the protocols had exhibited the elements of computation by which the two concurring commissioners made up their judgment, they would have disclosed the infirmity of the award and rendered any careful demonstration of it superfluous. 1 For. Rel. 1878, 291. The United States, in submitting the fishery question to the Halifax commission, did not, said Mr. Evarts, waive or curtail its construction of the convention of 1818, or include in the submission any question of economic or political advantage which grew out of access to the inshore fisheries. Both countries had evinced an amicable preference for practical and peaceful enjoyment of the fisheries compatible with the common interest rather than a sacrifice of such common interest to the purpose of insisting upon extreme claims of right. In this position the two countries had inclined more and more to retire from disputes as to the somewhat careless and certainly incomplete text of the convention of 1818, and to look to the true elements of profit and prosperity in the fisheries themselves, without attention to any sea line of demarcation. In the conferences of the Joint High Commission it was apparent that the American high commissioners regarded the obliteration of the sea line as of no great pecuniary value to the fishing industry, and they accordingly offered but a million dollars for the concession of it in perpetuity. On the other hand, it was not less apparent that the British high commissioners recognized the possession of the United States market as the one thing essential to the prosperity of the provincial fisheries. This commercial advantage was measurable in money. It seemed to the American high commissioners to exceed any reasonable estimate of the value of the inshore fisheries to the American fishermen. The freedom of inshore fishing to American fishermen and the freedom of the American market to the provincial fishermen constituted the basis of the arrangement of the Treaty of Washington. The British high commissioners, however, in addition to the concession of the American market, secured for the provincial fishermen unrestricted participation in the valuable inshore fisheries of the United States above the thirty-ninth parallel of latitude. After thus referring to the elements which properly entered into the estimation of the commissioners at Halifax, Mr. Evarts endeavored to show, by computation of the value of the privi leges conferred by the Treaty of Washington on the fishermen of the United States and Great Britain, respectively, that the award could not be supported by any pecuniary measure of the matters which were properly within the jurisdiction of the commission. Passing, then, from the essential elements of the award, he discussed the failure of the three commissioners to agree in the result and the consequent promulgation of a con clusion arrived at by a majority only. The question presented on the face of the award, viz, whether the concurrence of the three commissioners in the award was required by the treaty, was, said Mr. Evarts, a matter of public discussion in Great Britain and in the provinces, both before and during the sitting of the commission. In this discussion the legal, political, and popular organs of opinion seemed quite positive that unanimity was required by the treaty. In the United States the matter was little considered, either because the British view of the subject was accepted, or because complete confidence in the merits of the American case superseded any interest in the question. The question involved, first, the text of the treaty, and second, the surrounding circumstances. By the Treaty of Washington four boards of arbitration were constituted for the determination of different matters. In respect of three of them, it was expressly provided that a majority should be sufficient for an award. In the case of the Halifax commission, there was no such provision, and the inference from this fact was that it was not intended to invest a majority of that commission with power to make an award. The suggestion that the omission of such a provision was due to inadvertence was not to be lightly entertained, since there was special reason, in the case of the Halifax commission, for adopting every possible guaranty against unreasonable or illusory estimates. Mr. Evarts, however, in submitting this argument, declared that the Government of the United States would regard the maintenance of entire good faith and mutual respect in all dealings, under the beneficent Treaty of Washington, as of paramount concern, and would not assume to press its own interpretation of the treaty on the point in question against the deliberate interpretation of Her Majesty's government to the contrary.1 Reply of Lord Salisbury. The reply of the Marquis of Salisbury, made in a note to Mr. Welsh, bears date the 7th of November 1878. That Mr. Evarts's reasoning was powerful, it was not, he said, necessary for him to say; nor, on the other hand, would Mr. Evarts be surprised to learn that Her Majesty's government still retained the belief that it was capable of refutation. But, in their opinion, they would not be justified in following him into the details of his argument. The very matters which Mr. Evarts discussed were examined at great length and with conscientious minuteness 'For. Rel. 1878, 290. by the commission, whose award was under discussion. The decision of the majority, given after a full hearing of both sides, was, within the limits of the matter submitted to them, without appeal. The arguments of Mr. Evarts amounted to a review of the award upon the questions of fact and of pecuniary computation referred to the commission; for he contended that the sum awarded was excessive, and that therefore it must have been arrived at by some illegitimate process. This amounted, said Lord Salisbury, merely to disputing the judgment which the commissioners had formed upon the evidence. As to the question whether the award of the commissioners was required to be unanimous, Lord Salisbury cited Halleck, Bluntschli, and Calvo, to the effect that the decision of a majority of arbitrators binds the minority, unless the contrary is expressed, and declared that he was not aware of any authorities on international arbitration who could be quoted in the contrary sense. Lord Salisbury also argued that the form of the tribunal, and the manner in which it was constituted, indicated the intention of the contracting parties that a majority of its members should be competent to render an award. In conclusion, he expressed confidence that the Government of the United States would not, upon reflection, see in the considerations which it had advanced any sufficient reason for treating as a nullity the decision at which the majority of the commission had arrived.1 'For. Rel. 1878, 316. Senator George F. Edmunds, in the North American Review, 1879, vol. 128, p. 1, in an article on "The Fishery Award," maintained that unanimity was essential to the validity of the award of the Halifax commission. He argued that, in countries whose jurisprudence is founded on the Roman law, a majority is in the ordinary course of procedure sufficient for a decision, but that in Great Britain and the United States, where the common law prevails, the opposite rule obtains. On this ground he impeached the authority of Bluntschli, Heffter, and Calvo, in whose countries the Roman law is the basis of jurisprudence, and maintained that as between Great Britain and the United States unanimity was, in the absence of a contrary stipulation, essential to an award. It should not be forgotten, however, that the rules of international law are based upon the principles of the Roman civil law. This is due to the fact that international law was first developed by the nations of continental Europe, of whose jurisprudence the Roman civil law is the foundation. If, by general international practice, based on the authority of international law, the concurrence of a majority of a board of arbitrators is sufficient for a decision, the natural inference would be that the United States and Great Britain, in their dealings with each other or with other powers, as independent nations, intended to observe that practice, unless they expressly agreed to disregard it. The opinion of Attorney General Lee (supra, p. 10), |