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because the British view of the subject was accepted, or because complete confidence in the merits of the American case superseded any interest in the question.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.' 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 judg ment 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), Payment of the On the 21st of November 1878 Mr. Welsh, under instructions from the President of the United States, delivered to the British Government a draft for the amount of the award. In so doing he stated, by direction of the President, that the payment was to the effect that the decision of a majority of the commissioners under Article V. of the Jay Treaty would not be valid, was not accepted by his government. This fact appears by a letter of Mr. Pickering, Secretary of State, to Mr. Howell, the United States commissioner, of August 22, 1796, with which a copy of the opinion was enclosed. In this letter Mr. Pickering, after stating that he had consulted the Secretary of the Treasury and the Secretary of War, said: "With respect to the operation of the decision of the commissioners, if you proceed to examine and decide the question we are unanimously of the opinion, contrary to that of the Attorney General, that the determination of any two of the three commissioners (all being met on the business) will be binding on both parties: and for the following reasons. "1. That the great object of the treaty was to terminate the differences between the two nations; among which was the dispute about the river St. Croix as their boundary. "2. That the 5th article declares that question shall be referred to the final decision of commissioners to be appointed in the manner therein prescribed:' yet on both sides, the very possible, and even probable dissent of one of the commissioners must have been contemplated when the article was framed. "3. The parties, therefore, could never have intended to leave it positively in the power of either, against whom the decision should be made, to defeat its operation, by instructing its commissioner to withhold his signature from the declaration signed by the other two. "4. The nature of such transactions between parties at variance confirms the justness of the opinion, that two out of three agreeing, their decision will be binding; for when each has chosen one, or an equal number, another is appointed to ensure a majority on one side or the other; one very important object of such an examination of any disputed point being, to bring the controversy about it to an end. This is exemplified in the 6th and 7th articles of the treaty, in which provision is made that three out of the five commissioners shall constitute a quorum for business; and any two of those three agreeing, their decision will be binding. Thus the differences mentioned in these two articles, which must embrace several millions of property, are to be terminated; and it is impossible to believe that two parties would purposely leave the termination of a third subject of difference to depend on the mere chance of unanimity among the arbitrators; especially when the only obvious and conceivable design of the appointment of the third commissioner must have been to ensure a decision by the agreement of two out of the three; and when to have rested the final decision on the precarious and even improbable ground of unanimity, would have been evidently to risque the grand effect of the whole negotiation, the continuance of peace, by removing every cause of war.” made on the ground that the Government of the United States desired to place the maintenance of good faith in treaties, and the security and value of arbitration between nations, above all question in its relations with the British Government as with all other governments. Under this motive the Government of the United States had, he said, decided to separate the question of withholding payment from that of its obligation to pay. The Government of the United States could not accept the result of the Halifax commission as furnishing any just meas ure of the value of the participation by its citizens in the inshore fisheries of the British provinces, and it protested against the actual payment of the award being considered as in any sense an acquiescence in such measure or as warranting any inference to that effect.' 5627- -48 1 For. Rel. 1878, 334. |