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 NORTH AMERICA. No. 2 (1878). 
 
 
 CORRESPONDENCE 
 
 / 
 
 IIESI'ECTING TUK 
 
 
 AWARD 
 
 <^v Tin' 
 
 
 HALIFAX FISHERIES COMMISSION. 
 
 4 
 
 Presented to both Houses of Parliament by Command of Her Majesty. 
 
 1878. 
 
 [C— 2183.] Price M. 
 
 LONDON : 
 ViaXTlOU BV HAURISON AND SONS. 
 
 / 
 
 '5 yi J X 
 
LIST OF PATE US. 
 
 1 4 " 
 
 1. Ml-. I'.VMiMo Mr. Wolsli 
 
 •J. riic \!aniiiis of Sali-luirv lo Mr. Wi-lsli .. 
 
 Pnjrc 
 .So|itciiibcr •>?, 18;s I 
 Novrmbor 7, 14 
 
I-! 
 
 Correspondence respectinti; llie Award of tht» Halifax Fisheries 
 
 Commission. 
 
 No. 1. 
 
 Mr. Evarts to Mr. Welsh. — {Communicated to the Mdrrjuis of Sulisbuni bi/ Mr. tVeljh, 
 
 October 10, 1878.) 
 
 Sir, Depnrlmeitt of State, Washington, Scplcmber '27, 1H7H. 
 
 1 AM directed by the President to present to the attention of Her Majesty's 
 (lovcrninent the sentiments of this Clovernmcnt respecting the result of the 
 delihcrations of the Commission, lately sitting at Halifax, for the determination of 
 the (piestion submitted to it under the Articles of the Treaty of Washington 
 relating to the fisheries. It is the purpose of the present communication to put you 
 fully in possession of these sentiments that you may impart them to Lord Salisbury 
 with the same frankness that they are disclosed to yourself. 
 
 it is a matter of sincere regret to the President that the actual result of the 
 deliberations of this Commission has been such as to require from tiiis (lovernment 
 the course of observation upon the same, which it becomes my duly to submit to 
 the consideration of Her Majesty's Government. For reasons of paramount 
 importance to the interests of the two countries, in their future treatment of the 
 subject of the fisheries, a candid statement of the views of this CJovernmcnt, as to 
 the position in which the action of the C'ommission has placed those interests, is 
 due alike to the British Government and ourselves. Nor arc these views expressive 
 only of the sentiments of the Kxecutive Department of the Government. Upon the 
 papers being laid before Congress for its necessary action, upon tlie qu( sLioii of 
 making an appropriation from the Treasury to meet what siiould prove to be the 
 propcM- obligations of the Government under tiie Treaty, C'ongress. with great 
 unanimity, concurred with the Kxecutive in tlie opinion that the attention of the 
 Uritis.i Government should be invited to the subject of tlie Award, as looked upon 
 Ijy this (lOvernment, in advance of tiio linal action of tlic Kxecutive in reference to 
 its payment. Accordingly the sum appropriated by Congress to meet liic Award 
 is, by the "Appropriation Act" "placed under the direction oi' the President of the 
 United States with which to pay the Government of Her Britannic Majesty the 
 amoimt awarded by the Fisheries Commission, lately assembled at Halira\. in 
 |)ursuance of the Treaty of Washington, if, alter correspondence with the Hritisii 
 (lOvernment on the subject of the conformity of the Award to the re(]uiienicnts of 
 the Treaty, and to the terms of the (picstion thereby submitted to the Commission, 
 the President shall deem it his duty to make the payment without further commu- 
 nication with Congress." 
 
 The occasion for this correspondence with the British Government arises from 
 the great importance of reaching a com|)lete and explicit understanding Letween 
 the two Governments, as to the conformity of the Award made by the Commission 
 to the terms of the Treaty of Washington by which its authority and jurisdiction 
 are communicated and defined. If the Award in respect to the fisheries hat! relation 
 only to the sum of the payment involved, considerable as that is, the Government 
 might prefer to waive any discussion which could affect no continuing and per- 
 manent interests of the two countries, and would, therefore, comprehend only such 
 considerations as would touch the principles or elements of computation ajiplied by 
 the Commission in arriving at a pecuniary amount, the payment of which carried 
 
 \i;m\ . B 2 
 
no conspqiicnccs. Ft is true, even in such case, tiic indispntHblo rip^lit of the parties 
 to an arbitration pul)li(' or private, to examine an award in respect ot* its covering 
 only the very matter Kul)mitt(>(l, shouhl not be too reachiy relinquished IVom mere 
 rejni^nance to question, a result which, at least, it undisturbed, serves the good 
 purpose ofclosing the controversy. If the benevolent method of arbitration between 
 nations is to commend itself as a discreet and practical disposition of international 
 disputes, it must be by a due maintenance of the safety and integrity of the 
 transaction in the essential point of the Award, observing the limits of the sub- 
 mission. 
 
 liut this (lovernment is not at liberty to treat the fisheries Award as of this 
 limited interest and operation in the relations of the two countries to the iniportant, 
 permanent, and dinicidt contention on the subject of the Fisheries, wliich for sixty 
 years has at intervals pressed itself upon the attention of the two Clovernments, 
 and disquieted their peo|ile. The tenq)orary arrangement of the Fisheries by the 
 Treaty of Washington is terminable, at the pleasure of either party, in less than 
 seven years from now. The Fisheries Award, upon such tcrnnnation of the Treaty 
 arrangements, will have exhausted its force as compensation for a supposed 
 equivalent and terminated privilege. If the CJovernment by silent payment of the 
 Award should seem to have recognized the |)rinci[)les upon which it proceeds, 
 as they may then be assumed or asserted by Her Majesty's Government, it will at 
 once have projiidiced its own rights, when it shall become necessary to insist upon 
 them, and seem to have concealed or dissembled its objections to the Award wlicn 
 Great Hritain was entitled to an immediate and open avowal of them. 
 
 Upon these considerations the President and Congress have required that the 
 sentiments of this (iovernmcnt respecting the Fisheries Award should be set before 
 Her .Majesty's Government, to the end that a full interchange of views, in a 
 friendly spirit, between the two Governments, should leave no uncertainty as to 
 the degree of concurrence or of dilfcrencc in their respective estimates of this 
 transaction. 
 
 It is greatly to be regretted that the Protocols of the - 
 record '>f the steps by which the majority reached the t 
 anno" r. ;1 as the Award of the Commission, and the dissent, 
 the :i' . < hand, arrived at so widely dilferent a result. Flad 
 the L.tiiods of reasoning on the processes of calculation respecting cither of the 
 privileges which, under the submission of the Treaty, were to be measured and 
 compared, upon which these divergent results of their deliberations were reached, 
 the task of exposing the manner and extent in which, in the opinion of the 
 Government, the Award transcends, the submission of the Treaty would be mucli 
 simpler. Indeed, in the view which this Government takes of the narrow and well- 
 dehncd question submitted to the Commission by the Treaty, and of the indis- 
 putable result of the evidence pertinent thereto, there seems little rcation to doubt 
 that if the Protocols exhibited a trace even, of the elements of computation by 
 which the two concurring Commissioners made iqi their judgment, they would 
 inevitid)lv disclose the inlirmity of the actual Award, and make any careful 
 demonstration of the same superfluous. 
 
 I desire that you will first call Lord Salisbury's attention to the nature of the 
 question submitted to the Halifax Commission as adjusted through the diplomatic 
 Conferences of the Joint High Commission, and expressed in the Treaty. 
 
 Ill the first place, the United States, in the Fishery Articles of the Treaty of 
 Washington, did not intend to, and did not, waive or curtail in the least, the con- 
 struction of the fishery and appurtenant privileges accorded in the 1st Article of 
 the Convention of 1818, as claimed by them and actually possessed and enjoyed 
 by them under such claim, at and before the negotiation of the Treaty of Washing- 
 ton. Neither the Protocols of the Conferences of the Joint High Commissioners, 
 nor the text of the Treaty negotiated by them, indicate any intention of submitting 
 to the interpretation of the Halifax Commission the degree of privilege accorded 
 to the United States by the Convention of 1818. On the other hand, it is manifest 
 I'om the instructions to Her Majesty's High Commissioners, as well as from the 
 Protocols of the Conferences, that a settlement of the disputed interpretation of 
 he Convention of 1818 was contemplated as possible (mly by the diplomatic delibe- 
 rations of the Joint High Commission, and such conclusions thereon as th(>y might 
 find it in their power to embody i i the Treaty of Washington. This task, however, 
 they did not undertake, but provided only for a temporary possessory privilege that 
 should supersede, during its continuance, any determination of such disputed 
 
 nisHion make no 
 
 Aov which they 
 
 _ .immissioner, on 
 
 ilie record disclosed 
 
 «.. — • 
 
e 
 
 ^^ --'* 
 
 interpretation. In this disposition of the subject, it would seem quite beyond the 
 scope of the jurisdiction of the Halifax ("omniission to include in any measure of 
 the additional privilege accorded to the United States by Article XVII I of the 
 Treaty of Washinj^ton, any contribution for the enjoyment of the privilejifes 
 accorded to the United States by the (Convention of 1818, as claimed and actually 
 possessed by them, at the time of the nee^otiation of the Treaty of VVashin<ifton. 
 A reference to document No. 15, liled with the Halifax Commission, in sujjport of 
 the case of Her liritainiic .Majesty's (lovernment, and found at pao;e 2.5b of the 
 Conjyressional publication of the proceedings of the Halikix Commission, will 
 substantiate this proposition. 
 
 1 do not regard this point of serious importance in the exposition of the subject, 
 except that I desire to preclude, in behalf of the United States, any implication or 
 argument hereafter to be drawn from my passing over, without criticism, this 
 possible element in the admeasurement of the .\ward. The United States stiH 
 maintains its interpretation of the privilege secured by the Convention of 1818, and 
 protests apainst any implication from the magnitude of the Award of tlie Halifax 
 Commission, or otherwise, from its proceedings under the Treaty of Wasliington, 
 that the United States have sanctioned or acquiesced in, or by payment of that 
 Award would sanction or acquiesce in any lesser measure of the privileges secured 
 to the United States under the (Convention of 1818, than, as is well known to Her 
 Majesty's (iovernment, they have always insisted upon. 
 
 In the next place the United States did not submit to the Halifax Commission 
 under the Fishery Articles of the Treaty of Washington any valuation of any 
 general economic or political advantages, which grow outof access to fishing gro'inds 
 for the development of a mercantile or naval marine, and which, therefore, it might 
 be argued, would be enhanced by adding the area of the inshore fisheries of the 
 (iulf of St. liawrcnce to the fields for thpt enterprise, from the earliest |x'riod, open 
 to, and occupied by, the bold and hardy seamen of this country. Still less did the 
 United States submit to that Coinmission a pecuniary measurement of the removal 
 of occasions of strife between tiie lisliermen, or misunderstanding between the 
 (lovernments of the two countries, by the temporary obliteration of a restrictive 
 line, dividing the inshore from the deep-sea fisheries on portions of the coast of 
 British North America. 
 
 Hoth of these subjects are considerations. Governmental in their nature, 
 suitable to be entertained, with many others, in the diplomatic negotiations wiiich 
 ended in the Treaty. They are neither of tliem computable in money. That 
 whieii relates to the maintenance of good understanding and good neighbourhood 
 between the United States and the British North American Provinces can, least ol 
 all things, be admitted as an estimable element in a pecuniary computation. The 
 importance of such maintenance of good understanding and good neighbourliood 
 tiie United States will never iinder-vakie. In this interest large fiscal concessions 
 were made by the United States in the adjustments of the Treaty of Wasliington. 
 After such concessions the superadded submission to the Hahfax Commission of the 
 question of equalizing, by a pecuniary measure, those concessions witli supposed 
 equivalent concessions by Her Majesty's (iovernment, was entertained and agreed 
 to by the United States, mainly, if not entirely, in the disposition to meet any just 
 interest of the liritisii North American Provinces to be assured of tlie equality of 
 these intended equivalents. But the maintenance of these good relations is of 
 common interest to the two countries, and can never be made the occasion of 
 pecuniary tribute, as if of more importance to one than to the other. No such 
 calculation entered into the enlightened and conciliatory motives which animated 
 and shaped the important series of negotiations which produced the Treaty of 
 Washington. In the definition of whatever unadjusted computation was referred, 
 for pecuniary settlement, to the Halifax Commission, care was taken to include 
 notnins: whicii, suitably to the honour of both countries, was not measurable by a 
 scale of industrial and commercial profits. 
 
 If these plain considerations shall be viewed in this light by Her Majesty's 
 Government, it is hoped that a concurrence of opinion as to the nature of the 
 question actually submitted to a pecuniary measure by the Halifax Comiviission 
 may be easily reached. 
 
 It cannot be very material to recall Lord Salisbury's attention to the historical 
 attitude of the two Governments towards the subject in contention as to the 
 fisheries, by any present exposition of the matter. The sources of knowledge on 
 this subject are common to the public cognizance of the two Governments. Our 
 
diplomatic intcrcutirsc has uiiFoldod the views of succcHHivu British and American 
 Cabinets upon the conflicting: clulms of mere ri>>;ht, on tlic one side and the other, 
 and at th(> same time evinced on l)()th sides, an amicalile preHu'enee for practical 
 and peaceful enjoyment of the tishcries computihly with a common interest, rathei 
 than a sacrifice of such common interest to a pur|)ose of insisting upon extreme 
 right, at a loss, on both sides, oF wiuit wastoc:ich the advanta<>e sought by tlie con- 
 tention. In this disposition the two countries have inclined, more and more, to retire 
 from irrcconcileable disputations as to the true intent covered l)y tlie somewhat care- 
 less, and certainly incomplete text of the Convention of 1818, and to looli at the true 
 elements of prolits and prosperity in the iisheries themselves, which alone, to the 
 one side or the other, made the shares of their respective participation therein 
 worthy of dispute. This sensible and friendly view of the matter in dispute was 
 greatly assisted by the experience of the provincial populations of a |)erit>d t)f 
 common enjoyment of the fisheries without attention to any sea-line of demarcation, 
 but with a certain distribution of industrial and economical advantages in the 
 prosecution and the product of thiseonnnon enjoyment. The form of this experience 
 was two-fold. First, for a period of twelve years under the lleci|)r()eity arrangement 
 of trade between the United States and those provinces; a.id, second, for a briefer 
 period after the termination of the Reciprocity Treaty, under a system of licences, 
 which obliterated the sea-line of circumscription to our fishery fleet upon the 
 payment of Ices deemed adequate bv the provincial Governnu'iils. 
 
 In this disposition and with this experience, the negotiations of tlie Treaty of 
 Washington were taken up and produced the Fishery Articles of that comprehensive 
 Treaty. The results of this experience, and the influence of this disposition, are 
 plainly marked in the pertinent Protocol, and in the text «)f the Articles. 
 
 At the outset it was apparent that neitlier a conlirmatioii or rectification of 
 the old sea-line of exclusion, or the adoption of a new oi<c, had any place in the 
 counsels or purposes of Her Majesty's (Jovcrnnu'iit, or in the interests or objects of 
 Her Majesty's provincial subjects. It had become thc'ougldy understood, that 
 the line of the Convention of 1818 had become inapplical)lc, and in some respects 
 insuflerable to the common interests. 
 
 The mackerel, which, always an inshore as well as a deep sea fish, olf our 
 coasts, at the date of the Convention of 1818, and for twenty years after, as an 
 object of pursuit to our fishermen, was confined to the coast of thi> United Sl.ites, 
 and that (isliery was substantially unknown, in any commercial sense, in the 
 provincial waters. Either a ciiange of habits in the (ish, or an extension of the 
 enteri)rizc of our fishermen, had opened up the mackerel fishery of the (julf of St. 
 Lawrence to our pursuit. The gradual increase of the lisliing coast population ol' 
 the provinces had supplied the fishermen and excited the local intcicsts, lor the 
 prosecution from the shore, as the base of its operations, of the new industry of 
 inshore mackerel fishery. 
 
 Upon the concurrence of these circumstantial changes it was natural enough 
 for the coast population and the public men of the provinces to ccmclude that the 
 territorial authority whicii, under the Convention of 1818, gave the provinces tlie 
 monopoly of the inshore mackerel (isherv, onlv needed to be insisted upon, i)v a 
 vigorous exclusion of our fishermen, to be fruitful of great local prosperity . 
 
 'J'liese calculations were disappointed. It was soon found that the provinces 
 themselves were comparatively valueless as a market for mackerel, and that the 
 quality of the (ish, as respects the methods of its preparation for export, excluded 
 it from the general foreign market which was open to the products of the cod 
 fisheries. The near market of the United States was essential to the local pros|)eiity 
 of the insiiore mackerel fishermen of the provinces. The political control of that 
 market by the United States (piitc overreached the provincial control of the inshore 
 fishing-grounds. Fish that cannot (ind a market will not long be pursued for 
 gain ; and the fisiiing-coast population and the statesmen of the provinces alike, 
 saw that a participation in the mackerel market of the United States was the 
 indispensable condition of prosperity to their inshore fishery. Experience. ,)nnrmed 
 the logic of this reasoning. While the Reciprocity Treaty ciKlured, scirlements 
 throve and wealth increased. When it was withdrawn, population shrunk and 
 wealth declined ; and, but for the hope of its renewal, a destruction of this industry 
 seemed imminent. 
 
 Upon the other hand, the mackerel fishermen of the United States felt that a 
 participatio!! in the inshore fisheries of the Gulf of St. Lawrence was no equivalent 
 for a surrender of our mackerel market to the participation of the inshore fishermen 
 
 I 
 
 » ' 
 
of tlio provinccH. They jiistly lensonnd timt tliiH nrrnngomeiit, in rtMpect of tho 
 iDiu-kcrcl (Mtcli within tlic lino, iDstoad of pliicinu; the provinrijil (ishiny; inilustry 
 upon an ('(iiial foolMi<; willi di'h. really put us at (piilt* a (liHa(lvanta<;(<. Ordinarily, 
 hoiuo products have a certain mcaHure of advantage over duty-free competing 
 imports in freijjht, ocean or inland — insurance, an.l interest, and fi(cloraa;e. |{ut 
 here, nhal passes for our home product is ac(piire(l upon the very shore of our 
 foreign competitor. Its pursuit Is at the expense of an extended voyai^e, with 
 costly outfit and lari;e investnient. nt ^iTsxt risk, with ionj^; delay, measured l»y 
 heavy insurance and accruing; interest. Iirii)^in(; it to what is calle<l tiie homo 
 market, involves return voyaf;e an<l the attendant hurdens of expense. The farmer 
 fishermen of the provincial coasts leave the plouj;li in the furrow and the hav-cart 
 in the lield, and take to tlie simpl(> implements an<l open lioats, with which fishing 
 from (lie shore is prosecuted, when the mackerel show themselves. They cure their 
 catch as a part of tiieir Iiomk' labour, .ind ship it at low rates to our market by 
 bottoms which make a returninu: commercial freight. At these odds, the uharc of 
 the inshore mackerel fishery of the (Julf of St. liawrence seemed to our (ishermcn 
 but a |)()or addition to their for'ner extensive rights to be purchased by so great 
 a disadvantage in tlieir general lishing industry, on our own coasts and in the deep 
 sea, as well as inshore fisheries of the provincial waters. 
 
 'I'liese views, (oc, were condrmefi by our experience during the lleci|)rocity 
 arrangement, and after its close. lioth periods uiimistakeably marked the policy 
 of an open market for the products of tlic provincial fisheries us disastrous to our 
 fishing industry. 
 
 W'itli these opinions and these experiences, on the one side and on tne other, the 
 Hiuh Commis liouers undertook an adjustuKMit of the opposing interests upon the 
 principle of oitlilorating the sea-line between the lishermen of the two countries, 
 and tiiiding such compensation lor this co: -ession as might seem equal and just. 
 
 Ill the C'onieicnces of the Joint High (. ommission, it is very apparent that our 
 High Commissioners regarded the obliteration of the sea-line as of no great 
 pecuniary value to our lishing industry. Accordingly, they offered but 1.000,000 
 dollars for this concession in perpetuity. No doubt politically, and in the interest 
 of good neighbourhood, this (loveriiment did regard, and at all times would regard, 
 the restoration of the relations between the two countries in the comuKUi enjoyment 
 of these fisheries, to the ancient footing of the Treaty of 178IJ, as most grateful in 
 sentiment and as a most valuable guarantee against any renewal of strife. These 
 considerations, for reasons already stated, could not be worthily entertained 
 upon either side as an element of the pecuniary measure of the privileges to be 
 accorded. 
 
 Ill these C'onfereuces it is not less apparent that Her Majesty's High Com- 
 missioners recognized the possessiou of our market for the product of the |)rovincial 
 fisheries as the one thing essential to the prosperity of those fisheries, which could 
 not be dispensed with or replaced by any money purchase. This commercial 
 advantage was, of course, botii practically and suitably to the dignity of the 
 negotiation measurable in money. It seemed to our High Commissioners to exceed 
 in value to the provinces, as it unquestionahly diil in loss to us, any reasonable 
 estimate of the value of tlic |)rivilege our fishermen were to acquire, '('his basis, 
 however, of freedom of the fishing grounils to our fishermen, and freedom of our 
 market to the fishermen of the provinces, in simplicity and national equivalency, 
 presented advantages which might well have dispensed with any nice calculation of 
 comparative pecuniary values in the exchange. 
 
 Her Majesty's High Commissioners, however, thought that this exchange of 
 privileges, even with the added concession on our part, of throwing open to the 
 provincial fishermen unrestricted participation in the v.aluablc inshore fisheries of 
 our own coasts above the tliirty-niiuh parallel, left still a claim f(U' a pecuniary 
 makc-v.eight in favour of the provinces in the nature of owelty of partition. This 
 led to tlie constitution of the Halifax Commission to consider and decide the single 
 (piestioii whether, and how much, tlu; pecuniary measure of the new lishing 
 privilege opened to the United States lislieinien exceeded the pecuniary measure ot 
 the new fishing i^rivilege oiicned to the provincial fishermen, and of the possession 
 of our market, free of duty, for all the products of the provincial fisheries. This 
 dilTercncc between the two pecuniary valuations was in the nature of the problem 
 no less than by the terms of the Treaty to be expressed and paid in money. 
 
 Upon the conclusion of the labours of (he Halifax Commission, ar-d the com- 
 munication of the concurring judgment of the two Commissioners, awarding the 
 
»um of SjUlK 1.000 dollars an tlio amount to b(» jiaid by the United StutoH under tlio 
 Fishery Arlielcs of tht; 'I'rc.ity, and the jiid^^nient of thi» (lisitentint; CominisHioner 
 that no Slim whatever was payaltic l»y the United States under those Arlicdes, it 
 bceaine the duly of this (JovernnuMit to compare this result witli the authority 
 im|mrled to th»> ('oinmission by the Tn'aty, anti to determine whether it comported 
 with, or transcended, such authority. 
 
 It will not, I think, be nuestioned by Her Majesty's flovernment tliat, upon tho 
 proofs and art;uments, in whatever form sui)mitte(l by tho two (lovernnu'nts to tho 
 ('ommission, the practi<'al measure of tiie concession to tlie United States under 
 Article XV'lil of tii(! Treaty was simply of a free and ecpial ri<;lit to lake part in 
 the lisiieries of the (lulf of St. Ijawrcnce within the tliree miles line, ins ead of 
 beinp excluded liierefroni, as we were under the ('oiivcntion of IHlH. Nor do I 
 anticipate that you .vili find any dissent on the |)art of I.ord Salisliury from the 
 jiro|)osili()n, that the proofs fidly sliow thai (lie tishcry thus opened to us w.is the 
 mackerel fishery within that line. While both (lovernments must re};ret that the 
 sure footiuij; lor a concurrence of views i»etween them, which miy;ht have been 
 ruriiished by a careful system of Protocols of the Coiifereiices of the ('ommission, is 
 wanting, yet the proofs on both sides leave this |)roposilion in no (liiui)t. Indeed, 
 since the puhlicaticn by Parliament of the "Correspondence respcctinij the Halifax 
 Fislieries Commission" has disclosed the advices <;ivcii from lime to lime to Her 
 Majesty's fJovernment i)y Mr. Ford, the very iiitelli};eiit and circumspect Hritish 
 Agent in attendance upon the ('ommission, of the developments of the red subject 
 for valuation, there seems to be no room for any dinerenco of views between the 
 two Governments on this point. Thus, in his despatch of September lOth, 1877, 
 presenting the position upon the completion of the liritish evidence, .and before tho 
 opening of the |)r()ofs on the part of the United States, Mr. Ford suys, "the 
 mackerel fishery being that most cxlcnsiveiy pursued by the Aincricius in Hritisli 
 waters, is the branch of the iiupiiry to which the greatest attention was devoled." In 
 giving, too, in tlie same despatch, the general result of any pecuniary measure of 
 benefit to the United States lishermcn from the concession of Article .Will of the 
 Treaty, whicli the completed liritish proofs had presenleil as a basis for an Award, 
 Mr. Ford makes it very apparent that the mackerel catch within the three-mile line 
 was the only item ol appreciable importance. He says, " according;- to the evidence 
 adduced on tlie liritish side it seems beyond doubt that at least three-(|uarters of 
 the mackerel taken on the British North American coast is caught within the three- 
 mile limit, while, owing probably to the existence of sandy shoals at somi" distance 
 from the shore, the catch of this tish in the United States waters, north of tiu; .'MJth 
 parallel of nortli latitude, i.s principally beyond that distance." .Mr. Ford, also, 
 upon the mere I'riti.sli ])roofs, no less distinctly excludes the cod fishery as an 
 element of the conipiitation of the value to us of the concession of Article Will. 
 He says, " the cod fishery is |)ursued to a limited extent only by United States 
 fishermen within British territorial waters, and this is |)roi)ai)ly the case with 
 regard to hake, linddock, pollock, &c ; " and, again, "the evidence is somewhat 
 vague as to the pr iportion of cod fish taken l)y Americans in British inshores, 
 au(l it does not probably amount to anything considerable, except on certain 
 portions of tho north shore of the (lulf of St Lawrence.'' 
 
 I\Ir. Ford's despatch, upon a survey of the counterproofs of tlic United Slates, 
 which had just been completed, under the date of oOlh Oetolier, 1877, presents the 
 contention between the parties, and as recognized by i)otli sides, in the same light, 
 lie savs, "78 witnesses, in all. have been examined, and 280 affidavits filed on 
 the United Stales' side; anil, as was the case on the British side, the main part of 
 it has heoii direcled to the mackerel fishery, with regard to which the United 
 States' Counsel have sought to establish the following salient points : — 
 
 •'1. That tlie lisliing groii.ids principally resorted to l)y the United States' 
 fishermen in the (iiilf of St. Lawrence are on the l)anks situated outside the three- 
 mile limit, and at the Magdalene Islands, to which they had access previous to the 
 conclusion of the Treaty of Washington. 
 
 "2. That the lisliing business is at the best an unprofitable one, as regards 
 its net results to tlie owners or charterers of vessels. A mass of statistics has 
 been put in evidence with a view to prove this assertion, and to siiow that the 
 Canadian insiiore fisheries can liardly be pursued by the Unit'^l States' citizens 
 except at a loss; while those on their own shore yield a greater prospect of 
 remunerative results. 
 
" H. That tlin nMniHsion of diiticH on ('aiia<liati I'ihIi Ih a i;roat luiM-lil to iIil* 
 |)I(hIii('ci', iiiasiniirli as tlio oliicl' market lor mackerel is l\nt Uiiitctl SlutcH." 
 
 Ill the Name ilespateh Mr. Konl, in certain observatioim ol' his own upon tliu 
 ronntervailiii^ force of the proofs of the United States, as a whole. ay;.iiiist tnc 
 Hritish proofs as a whole, shows that the valuation ol the inshore mackerel lishery 
 ol" the linir of St. Lawreiic*-, opened to oiir lislieriiien, was the whole matter 
 ot conteiitioii hel'ore the Comiiiission in respect of tin* concession ol Article XVIJI 
 ol" the 'I'reaty. lie remarks, " I may, liow(!ver, oliserve that, as it has never Iktmi 
 di'iiied, even In (he liritish side, that a certain |>ortion of the mackerel laken l>v 
 tin* United States in tin; (luH" ol' St. Laurence im caiijjht oiilsidi! the tlireu<inilu 
 limit, there could lie no dilHctilty in producing;' a cimsider.ilile niimlK'r 'il' lisliermen 
 who would Iruthtullv ilepose that the inaiorit)()r their successl'iil tr ps had In-uii 
 made outside the limit ol' Hritish territorial jurisdiction. 'Die main 'act, however, 
 remains |»r.ictically intact, vi/,., that without access to the iiislioros il would hu 
 impossil)l(( lor the nencral business ol" iiiacUerel lisliiny; hy United States' vessels in 
 the (lulfOr St. Lawrence, to . <• pursued with prolital)li' loults." 
 
 It seems to this (iovcri nitiit <piitc certain, then, that upon a correct exposition 
 of the submission ol'the Treaty, and the concurriiif.f action of the two (iovcriimentK 
 in the production and application of what they dceiued ajipropriate prool's, what 
 the pecuniary value ol' t)ur participation in the inshore mackerel lishery ol the (iuU' 
 of St. Lawrence wus fairiy estimated at, constituted the extreme limit of any 
 
 1)()ssil)le |)ocuniary award by the llalil'ax (.'ommission afi;ainst the United States. 
 I, upon :iny rational view ol' tiic criteria oi this value ix-lorc the Commission, the 
 Award ol tiic two coiicurriiif;' C'ommissioiicrs ot' '),'t(M,UOi) dollars as a twelve years' 
 purchase of the privilc;.;;e can i)e maintaiiuHl, it may be fairly conceded that the 
 imputation of invalidity to tlie award h)r transcending;' the submission of the 
 Treaty will fail of ade(|uale demoiistralion. If, on the oilier hand, the candid 
 exploration of the evidence shall show that there exists no rational proportion 
 between this award and the nn(|uestionabl(> limits of value which any view of the 
 testimony must assij^n to the subject submilled for valuation by the Treaty, us 
 correctly interpreted, then i>y the very statemeiiL of the proposition il is «lemoii- 
 stratcd thai the coiicurrin>>- Commissioners have passed their judf^mcnt of valuation 
 upon some other subject than that (leliiied in Article X\'l 1 1 of tlu^ Treaty, and 
 have transcended the submission to their decision. In such case, the antecedent 
 authority imparled to the Commission by the two (lovernmeiits fails to justify the 
 Award, and the subject of the Kisheries remains at the arbitrament of the two 
 (lOveriiiiK nts. iinconstrained though perhajjs enlightened by the delil)uralit)ns of 
 the llalil'ax Commission. 
 
 in proceeding; to apply the proposed test of conformity or nonconformity 
 between the Award and the submi:ssioii, 1 di.sclaim all right to trcncli upon the 
 range of discretion, or to dispute the entire frcedoin in comparing, weighing, and 
 extracting the true results from evidence which belongs to such s|)ecial 'I'ribunals 
 us the Halifax Comiiiissioii. I shall not seek in the least to impose any views of 
 my (jovernment upon the evidence in the plac(! of any that may be assumed even 
 to have been taken by the concurring Commis.sioners. I do, however, insist iliat 
 upon an, jnestion of fact within the submission, the record of tlic evidence cannot 
 be surpassed by spontaneous conjectures or imaginations of the Commissioners. 
 1 have no diHiculty in saying* that the error of the concurring Commissioners, if 
 error they have fallen into, does not seem to me of this nature. Tiial error is not 
 of mistaking the evidence adduced u|)oii the subject submitted to them, but of 
 mistaking the subject submitted to them, and thus liberating their judgments from 
 obedience to the evidence as thus adduced. 
 
 Kortunately, there are trustvxorlhy criteria for determining the value of (he 
 concession of Article XVII I, as 1 have deiined that concession to l)e. They arc 
 resorted to u|K)ii one side and the other, and. confessedly, furnish the material upon 
 which the appraisement, if conlined to the subject as truly detiiied, must turn. If, then, 
 upon the evidence, if found conliicling or divergent, the largest measure of valuation 
 deducible therefrom be given in favour of the concession of Article Will, and 
 that extreme value shall show no rational or approximate relation to the sum 
 uwarded, there would seem to be no esca|)e from the conclusion that the concurring 
 Commissioners accepted some other subject lor their appraisement than that 
 submitted to them. 
 
 It happened that, before the Halifax Commission had concluded its labours, 
 five fishing seasons uf the Treaty perioil had already elapsed, and the actual 
 [13G5] C 
 
s 
 
 expcrienco of the enjoyment by tlie United States' fisliermen of the privilege 
 conceded, replaced any conjectural estimate ol' its value by reliable statistics o\' 
 its prcuniary lesiilts. These statistics disclosed that the whole mackerel catch of 
 the United Slates Tor these five seasons in the (jidf oC St, Lawrence both witliin 
 and without the three-mile line, was 1(57,^)15 barrels. The [)r()vincial eslimatcs 
 claimed that three-quarters ol' this catch was within the three-mile line, and so to 
 l)e credited to the |,rivilej>o conceded by Article XVili. 'I'lie United St:ites' estimates 
 placed the proportion at less thai, a cpiartcr. Upon the provincial claim ol' three- 
 quarters, the product to our lishermen of these live years oi" inshore lishini;' would 
 be 125,!)(JI barrels It was established, upon provincial testimony, that the price 
 which mackerel bore in the provinces, cured and packed roady lor exjjortation, 
 was 3 dol. 76 c. per iiarrel, and this would ^ive as the value, cured and p-icked, of 
 the Uniterl Staios' inshore cptch I'or five years, the sum ol' 472,1^0.$ dollars. But in this 
 value are included the barrel, the salt, the expense of catcliMi;;, curing-, and packing, 
 which must be deducted before the profit, which •. oasures the value of the fishery 
 l)iivilego, is reached. Upon the evidence 1 dollai a barrel would be an excessive 
 estimate of net profit, and this would g;\\c a prolit to our fishermen from ti e 
 enjoyment for th >se five seasons of the fishery orivilege, conceded under Article XV III, 
 of but 2r),000 dollars a-vear, or, for the whole Treaty |)eriou of twelve years, of 
 300,000 dollars, 
 
 Althougi) there would seem to be no reason for distrusting' this commercial and 
 pecuniary measure of the privilege in question, yet, if it should be pretended that the 
 provincial value should not be taken, but the value in the market of tin; United 
 States ; and, further, that an extravagant rate of 10 dollars per barrel should be 
 assumed as that value; and, agai:i, beyond all bounds of even capricious estimate, 
 a conjectural prolit of oO per ccut. should be assigned to tin fishing- adventures, 
 we should have but I2'),000 dollars a-year, or 1,500,000 dollars for the twelve years 
 of the T'-eaty, for the gross valuation of the concession to the United States bv 
 Article XVIII, undiminished by a penny, for the counter-concessions of the United 
 States of Articles XIX and XXI. Yet this sum, thus reached, is l)ut little more 
 than one-quarter of the Award of the concurring Commissioners, after taking into 
 account the deductions required for the privileges of Articles XIX and XXI. 
 
 The proofs disclose another whollv independent criterion of the value of the 
 privilege conceded to our fishermen by Article XVI II of the Treaty, tirawn from 
 the experience of some years intervening between the abrogation of the Reciprocity 
 Treaty and the negotiation of tiie Treaty of Wasiiington. The Provincial Govern- 
 ment in these y^ars adopted a licence system, by which vessels of the United 
 States were admitted to the inshore iishery upon the jjayir.ent of fees for the season, 
 rated by the to.i. The experience of ihis system siiowed that uiuler an exaction 
 of .50 cents per ton. our fishing fleet took out licences ; that when the foe was 
 raised to 1 dollar per ton, the number of licences fell otf about one-half, and when 
 a fee of 2 dollars per ton was exacted, but few licences were taken out. Tiie 
 fairness of this measure of the value of the privilege is ol)vious. It furnishes a 
 compensatory rate between opposing interests, suggested and acted upon by them 
 ithout coercion, and by concurring consent. 
 
 The tonnage taking out Ucences under the first and lowest i-ate was about 
 .'3'2,GOO tons. Assuming, contrary to experience, that this tonnage would have borne 
 Mo; highest rate of 2 dollars per ton, the sum ol 04.000 dollars per annum would 
 have measured the value "f the privilege in question, and would have yielded for 
 the Trcatv period of twe..'e years 7()!S,000 dollars. By this met'nod of valuation of 
 the privilege of Article XVIIl (without deducting a penny for the counter-privileges 
 of Articles XIX and XXI) would be but about 14 per cent, of tiie vV ward of the 
 concurring Commissioners, after they had taken into account these privileges. 
 
 You will say then, to Lord Salisbury, that with every anxiety to find some 
 rational explanation of the enormous disparity between the pecuniary compulations 
 of the evidence and the pecuniary measure announced by the concurring Com- 
 missioners, this Government has been unable to do so u|)on any other hypothesis 
 than that the very matter defined in Article XVIII, and to which the proofs on both 
 sides were ap jlied, and the verv matter measured by the Award of the concurring 
 Commissioners, were not identical nor even similar, and that such Award, upon this 
 reason, transcends the submission. 
 
 The demonstration at which I have aimed apj)ears so conclusive upon the mere 
 consideration of the concessioa of Article XVIII, as to supersede, so far as the 
 immediate argument goes, an exhibition of the reduction even of the moderate sum 
 
 ' 
 
9 
 
 above assigned, as the true appraisal of the concession of f'\ at Article, by the 
 pecuniary value, ns laid bcfoio the Conimission, of tlie counter-concessions of 
 Articles X'lX and XXI. Hut a l)rief statement of tlie views of this Government on 
 the treatment of these counter-concessions in the deliberations of the Halifax 
 Commission, is requisite botli to the completeness and the frankness of this 
 exposition. 
 
 In brief, it may be said that Her Majesty's (jovernment formally insisted in 
 their '• Case" and in their " Rcjilv " laid before tiie Conimission, tiiat tiie concession 
 of Article XIX, whereby liritisii subjects are admitted to tiie freedom oi' our coast 
 fislieries north of the thirty-ninth parallel, is, to cjuote tiie ian<>'uag;e of tiie "Case," 
 " absolutely valueless;" and tliat tiie concession of Article XXI, admitting fisli and 
 fish-oil, the product of ih.e provincial fisheries, to our markets d'lty-freo, to quote 
 tl<e language of tlie " Roply," " has not resultcfl in pecuniary profit to the Hritisli 
 tisiiermen, but, on the contrary, to tlie \meriean dealer or consumer," 
 
 If I have l)een at all successful in sliowing the enormous (lispropo:tio:i between 
 the sum of 5,500,000 dollars annou'iced as their award by liie concurring Com- 
 missioners, and the |)(H'uiiiary value which tiie evidence assigns to the concessions 
 of Article XVlll by itself considered, I need sp-iid little time in showing that these 
 Commissioners must have accepted the views of Her Majesty's CJovcrnment that 
 nothing was to be allowed for countervailing value to the concessions of Articles 
 XIX and XXI, or, that these Commissioners had in their minds a measure tor the 
 concession of Article XVIII still more in^•onsistent with the true Treaty delinition 
 of the subject described in that Article and submitted to the appraisement of the 
 Commission. 
 
 If the concession of Article XIX was held by the Commissioners to be 
 "absolutely worthless," as asserted in the '•Case" of Her Majesty's Government, 
 it must have been l-ccause the pecuniary profit to the provincial fishermen of the 
 privilege as actually enjoyed by them was the true measure of estimation of the 
 value of the concession. In this view the immense value of these fisheries, as shown 
 in the evidence, all went for nothing, because the ])opulation, capital or enterprise 
 in the provinces, could not. carry on, what to them were remote f-sheries in com- 
 petition with our own coast iTopuiation. Without insisting upon the unreasonable- 
 ness of measuring the value of our fishing grounds by the incompetency of 
 provincial resor.rccs to engage in the lisiicry opened to them, this disposition of the 
 value of the concession of Article XIX recognizes the whole force and result of the 
 reasoning liy wiiieh I have assigned the true criteria of value for the privilege of 
 Article XVlll, under the cxpcrieiue of the actual five years' enjoyment thereof by 
 our fisiiermen, wiio were able to take advantage of the privilege and did so, to the 
 furtliesl extent compatible with prolit. The view of the reasoning by which a right 
 of hshery, valuable in its own capacity, is measured by the tenants' inca|)acity to 
 fish, is obvious. It furnishes no true criterion of the rent value of a fishery, whicl\ 
 is what needed to he got at both under Article XVIII and Article XIX. Under 
 Article XVlll we are furnished a true criterion by the experience of a tenant, 
 confessedly willing and able to improve the fishery to the utmost, and actually 
 doing so. 
 
 I now desire you to present to Lord Salisbury's attention the subject of the 
 concession of a free markec in tlie United Stales for tlie products of the provincial 
 fisiieries, as made by Article XXI. The value of this privilege to the provinces was 
 re(iuire(l by the Treaty to be measured by the Halifax Commission, and deducted 
 from their appraisement of the concession of Article XVHI in favour of the United 
 States. 
 
 The statistics of the importation under this privilege showed that at the rate 
 of duty prevalent before that concession, a revenue of about 200,000 dollars per 
 annum on mackerel alone, and of more than 300,000 dollars on all kinds of fish 
 (mackerel included) and fish-oil would liave accrued to the United States. For the 
 purpose of argument, conceding that but one-half of this annual sum of 300,000 
 dollars should be set down as peeuniarv profit to the Provincial interests, the sum 
 of l,tS00,000 dollars would need to be deducted, on the score of Article XXI, from 
 the true valuation of the privilege conceded by Article XVIII. if I have assigned 
 correctly the higiiest possihle measure of the privilege of Article XVIII, upon the 
 evidence, as not being more tlian l,o00,000 dollars, this low valuation of the 
 privilege of Article XXf more than extinguishes it. 
 
 Wiiatever disposition the concurring Commissioners made of this counter- 
 vailing concession of Article XXI — whether they gave it a value commensurate 
 
 [1305] 
 
 C2 
 
10 
 
 with the statistical evicicnor of the revenue loss to tlie [Initod States, and markol; 
 gjain to the Provincial interest, or considered it absoUitely vaUiek'ss — the matter is 
 one of mucii moment. 
 
 Jf these concnrrinp; Commissioners p^ave the snm of 5,r)0r).000 dollars as the 
 appraisement of lh<' concessio!! of Article XVIII, after (Ii>ductin2j some 2.000.()0f) 
 dollars for tiie coiintervailinc^ concession of Article XXI, the ar<2^ument, as it 
 seems to this Government, adequate before, heconies still more conclusive that the 
 measurement, thus enhanced to some 7.r)00.000 dollars, was not applied and 
 confined to the verv subject submitted to the appraisement of the Commission by 
 Article XVIII. 
 
 Hut, it mav be said, these concurring^ Commissioners may have treated the 
 concessioi'i of Article XXI as absolutely valueless to the Provincial interests, and it 
 was competent for them to do so. But this alternative is little consistent with the 
 whole tcnour of the views of Her Majesty's (.Jovernment, as maintained by 
 successive Cabinets, and insisted upon in responsible i.egotiations, by their most 
 eminent Representatives throu£2;h a Ions;* course of years. Certainly, ever since IS.*)], 
 when Lord Rlp^in, as Governor-General of Canada, communicated, throuf^h the 
 British Minister at Washinp;t()n, Sir Henry 15idwer, to Mr. Webster, Secretary of 
 State, the opinion of the British Government that the admission of the product of 
 the Provincial lisheries dutv free to our market was the one indispensable condition 
 to our participation in the inshore fisheries of tlie Provinces, down to the nefi^otiation 
 of the Treaty of Washington, the attitude of the British Government on this point 
 has been explicit and unequivocal. 
 
 Lord Els^in declared, " Her Majesty's Government are prepared, on certain 
 conditions and with certain reservations, to make the concession to which so much 
 importance seems to have been attnched by Mr. Clayton, viz., to throw open to the 
 fishermen of the United States the fisheries in the waters of the British North- 
 American Colonies, with permission to those fishermen to land on the coasts of those 
 Colonies tor tlio purpose of drying their nets and curing their fish, provided that in 
 so doing they do not interfere vvitii the owners of private property, or with the 
 operations of British fishermen, 
 
 "Her Majesty's Government would require, as an indispensable condition in 
 return for tliis concession, that all fish, either fresh or cured, imported into the 
 United States from the British North- American possessions, in vessels of any nation 
 or description, should be admitted into the United States duty free, and upon terms 
 in all respects of equality with fish imported by citizens of the United States." 
 
 The deliberations of the Joint High Commission, as preserved in the Protocols 
 of their Conferences on the fisheries, exhibit, witii perfect distinctness, the British 
 opinion as to a free market for the product of tlie Provincial lisheries being a value to 
 the Provincial interests wliich could not be missed, or replaced by a pecuniary 
 sulistitute, in any settlement of the question, Tims our Higii Commissioners stated 
 "that if the value of the inshore fisheries could ho ascertained, the United States 
 might prefer to purchase for a sum of money tlie right to enjoy, in perpetuity, the use 
 of these inshore fisheries in common with British fislu'rmen, and mentioned 1,000,000 
 dollars as the snm they were prepared to offer." The Britisli High Commissioners 
 replied " that this offer was, they thought, wluilly inadcf|uate, and that no arrange- 
 ment would be acceptable of which tiie admission into the United States, free of 
 dntv, of fish, the produce of British fisheries, did not form a part." After a considera- 
 tion of commercial equivalents, in which the otl't-rs of our High Commissioners were 
 not accepted by tlie Britisli High Commissioners, all such propositions on our part 
 were witlidrawn, and our Commissioners renewed their proposal to pay a money 
 equivalent for llie use of the inshore ilslicries, and further proposed that, " in case the 
 two Governments should not be able to agree u|)()n the sum to b^ paid as such 
 equivalent, the matter should be referred to an impartial Commission for determina- 
 tion." To this the British Higli Commissioners replied, "that it juld not be 
 possible for them to come to any arrangement except one for a term of years, and 
 involving the concession of free fish and fish-oil by our High Commissioners ; but 
 that, if free fish and fish-oil were conceded, they wouhl incpiire of their Government 
 whether they were prejiared to assent to a reference to arbitration as to money 
 pavment." Our High Commissioners replic' "that tiiey were of opinion that free 
 fish and fish-oil would be more than an etpiivalent for those lisheries, but that they 
 were also willing to agree to a reference to determine that (picstion, and the amount 
 of any money payment that might be found necessary to complete an equivalent." 
 Hereupon, as stated in the Protocol, "the British Commissioners having referred the 
 
 ri 
 
11 
 
 ri 
 
 last proposal to their Government, .-tnfl rcffivod instructions to accpjit it," tho fisliorv 
 Articles of tiie Treaty were aajreed to. 
 
 These opinions of llcr .Uajesty's (lovcrnmont were entirolv in ac{")r.l with the 
 views of tiie lea(hn<;- Provincial state>-incn. .Mr. Stewart C;unpl)ell, oC .Vova Se;)tia, 
 declared tiiat " under tiio Reciprocity Treaty tiic total exemption froin duty ol' all 
 lish exported from the maritime Provinces to tiie markets of the United States was 
 also a l)oon of inestimable value to the very lari;e class of iiritish subjects directly 
 and indirectly connected with our fisheries and its residtinj^ trade." Sir .fohn 
 ]\lacdonald said, in the Parliament of the Dominion, •' the only market for tiie 
 Canadian No. 1 mackerel in the world is the United States. That is our only 
 market, and we are practically excluded from it by the present dutv. The con- 
 sequence of that duty is that our fishermen are at the mercy of the .\merican 
 fishermen; they are made the hewers of wood and drawers ol' water for the 
 Americans. They are obliged to sell their fish at the Americans' own price. The 
 American fishermen purchase their fish at a nominal value, and control the 
 American market. The ;;rcat profits of the trade are handed over to the American 
 fishermen or the American nuM-chants engai^ed in the trade, and they prolit to the 
 loss of our own industry and our own people." 
 
 It may be that ller .Majesty's Government has surrendered these opinions, and 
 that the statesmen of the Dominion and the people of the provinces now think that 
 the possession of our market for the |)roducts of the provincial fisheries is of no 
 pecuniary advantage to these provincial interests. In such case, in any future 
 negotiatio:i respecting the fisheries, this Government would expect no stress to be 
 laid upon the cpiestion of the possession of our own markets. If Her Majesty's 
 Government accepts the award of these concurring Commissioners as carrying the 
 necessary consequence that the concession of .\rticle XXI is of no value to British 
 or provincial interests, that element of calculation will disappear from any |K)ssi!)le 
 exchange of equivalents that the exigencies of any future friendly negotiations may 
 need to find at their service. \ privilege that is valueless wdieii granted to and 
 enjoyed l)y a beneficiary may well oe reserved and withheld, without the charge of 
 its being ungracious to flo so. 
 
 If, on the other hand. Her Majesty's Government adheres to the views of the 
 value of our market for the product of the Provincial fisheries, so often and so 
 earnestly pressed upon the attention of this Government, and asserts that the 
 Award of the concurring Commissioners must be held, u|)on necessary reasoning, 
 to have measured and deducted this great value of free market from the appraise- 
 ment of the concession of free fishing to us, made by them under Article XVIII, 
 this Government will expect the more ready acceptance by Her Majesty's Govern- 
 ment of the proposition, that these concurring Commissioners, in their Award, 
 mistook the subject submitted by Article XVI II to their pecuniary measurement, 
 and exceefled the authority under which the Commission acted. 
 
 You will, however, very earnestly press upon Lord Salisbury's attention, in 
 advance of any declaration from Her Alajesty's Government of their present views 
 of the value of our markets for the products of the Provincial fisheries, that this 
 Government has not changed or at all modified its opinions on this subject. To 
 dissemble or conceal from Her Majesty's Government tiiis fact would be uncaiidid, 
 and, by silence on our part now, breed mischief for future contentions or negotia- 
 tions. 'J'his Government holds now, as it did by the mouth of its High Commis- 
 sioners in the Conferences on the suliject of the fisheries which prodiieefi the 
 pertinent Articles of the Treaty, "That free fish and fish-oil would be more than 
 an ecjuivalent for those fisheries." The measure of pecuniary value which I have 
 drawn from the revenue loss to the United States, calculated with extreme 
 moderation, is an inade(]uate expression of the benefit to the Provincial interests 
 and injury to our own from their free im|)oriations. It is still tiie opinion of this 
 Government that the possession of our market is of vital importance to the mari- 
 time provinces, and such possession a formidable menace, if not a fatal wound, to 
 our ')wn fishing interests. I do not think that I misunderstand or misrepresent 
 those interests when I say that, stanfling as we now do, midway in the Treaty- 
 period, it would be better for those interests to surrender the enjoyment of the fish- 
 ing |)rivilcge of Article XVIH for the remaining six years of tlie twelve, upon ,<? 
 resumption by the Government of the control of our own market for this unexpired 
 period. 
 
 If Her .Majesty's Government and the Provincial statesmen are firm in the 
 opinion that the concession of Article XVIH parts with so mueh to us, and the 
 
12 
 
 concession oF Article XXI is vahieless to Britisli and Provincial interests, it may 
 be well worth while for the two Ciovernments to consider whether a nuitiial resump- 
 tion of these exchanjjed interests may not be desirable. In tiio lutiirc, as in the 
 past, this (lovernmcnt will go very far in concessions to remove occasions of strife 
 between (he lishermen of the two nations. Hnt these contributions to p^oodwill, as 
 I have before insisted, arc not to i)(^ confounded with pccnniary trilxite on one side 
 or the other. 
 
 It was in this spirit tiiat the free importation of coal, salt, anil lumber, which 
 was in debate as a measure of wholly d;)mestic interest to ourselves, but with 
 divided opinions, was proposed to the iJritisli Ciovernment for rr('i|)roe.il arranj;-e- 
 ments in respect of these Articles to be incorpor.-itcd in the Treaty of Washinj^ton. 
 The proposal was rejected by the British Ciovernment and the Provincial interestr., 
 doubtless, upon a measuriiifj cast as to whether this reciprocity carried more l)ciietit 
 or injurv to Provincial interests, and what wo tliouj^'hfc an aii])r('ciablv j^reater 
 advantane to the Provinces than to ourselves, was rejected as unimportant to them. 
 The contrast between this indiirerence to a free market for coal, salt., and lumber, 
 and tlio inexorable demand for a free market for iis'i and fisli-oil, speaks volumes 
 for the pecuniary value of this latter to Provincial interests. 
 
 Her Majest;y's Ciovernment, it may rcasi)n;U)Iy be assumed, has j;iven to this 
 Award of the concurring- Commissioners its carefid attention, and subjected it, in 
 the lig'lit of the diplomatic ne<;'otiations which established the Halifax Commission, 
 and the evidence before that Commissi(ui, to a comparison with the authority 
 imparted by the Treaty, to determine whctlier it conforms to that authority and is 
 valid, or transcends that authority and, for that reason, is void. Whatever opinion 
 fler -Majesty's Government may liave formed on this point has not, so far as this 
 Government is aware, been made public at iiome, and has not been communicated 
 to this Government. In invitinc; .a full exposition ol the views of Her Majesty's 
 Government upon tlie matter, as now brought into consideration between the two 
 Governments, you will say to Lord Salisbury that, wholly unsupportable as the 
 pecuniary measure of the single and fragmentary matter, not endiraced in the 
 diplomatic concurrence of the High Commissioners, and thus left by them to 
 impartial appraisement, seems to this Government, it will receive and examine with 
 entire candour any oijposing- views in maintenance of the validity of the Award 
 which Her Majesty's (iovernmcnt may present. If, as I shall not cease to anti- 
 cipate, Her Majesty's Government shall agree that the subject submitted to the 
 H.ilifax Commission has not been adequately dispobcd of by the concurring Com- 
 missioners, the way will seem to this Government to be thereby opened for a more 
 permanent and comprehensive settlement of the fishery interests of the two 
 countries than was rciiciicd by the Treaty of Washington. If the present corres- 
 pondence shall not result in this desireil agreement, and even if the op|)osing views 
 which may be comnumicated by Her jNIajesty's Government should ad'ect our 
 present judgment in th ; very matter of the validity of the Award, I cannot, in .dl 
 candour, hold out any expectation that this Government can ever recognize the 
 valuation of the countervailing concessions of Ai\'cles XVII I, XfX, and XXf, 
 involved in this Award, as a guide even, much less a standard, for a;'.v future 
 treatment of the fishery contentions, which the exigencies of tiie situation as now 
 left may re(|uire. 
 
 Passing from the grave question which touches the essential elements of the 
 Award, upon considerations vital to the whole system of arbitration, 1 desire voti, 
 further, to call Lord Salisbury's attention lo a particular point in the actual Award ; 
 that is to say, the failure of the three Comnussioncrs to agree in any result, and 
 the consequent announcement of that inability, and the promulgation of the widelv 
 diftcrent conclusions which the two concurring Comnussioncrs and the dissenting 
 Commissioner had reached. 
 
 The question presented on the *ace of the Award of the Halifax Conunission, 
 viz., whether the concurrence of the three Commissioners in their .Vward was 
 required by the Treaty, was made a matter of jiublic discussion, both in (Jrcat 
 Britain and in the Provinces, before and diu-ing the sitting of the Commission. In 
 this discussion, so far as it has fallen under my notice, the legal, political, and 
 popular organs of opinion seemed quite positive that this unanimity v. as recpiircd 
 by the Treaty. In this country the matter wa little considered, cither l)ecausc the 
 British view of the subject was acce|)te(l, or Ijccause complete conlidence in our 
 Case, on its merits, supcrvaded any interest in the ciuestion. Th. pc^int comes ui: 
 now, for the fust time, for consideration between the two Governments, and will 
 
IM 
 
 wo.cd attention Ironi either, only, in case Her Majesty's (Jovcrnment slio hi fail to 
 concur in the views of tliis Government which condemn the Award on the grave 
 grounds already |)resented. 
 
 The r|ucsti()n involves nothing more than the interpretation oT the Treaty, and 
 is quite cl.ar oi' any intermixture with the sid)stance of the Awaui as satisfactory 
 or unsatisfactory to either party. It turns, lirsL, u|)on the mere text ■':l' the Treaty ; 
 and, second, upon the surrounding circumstances and the dillerent subjects to be 
 treated by the various Hoards of Arbitration framed by the Treaty of Wasiiiiigton, 
 so far as they may be rightly resorted to in aid of a just construction of the 
 text. 
 
 Hy the Treaty of Washington four Hoards are constituted for the determination 
 of certain matters to l)o submitted to their respective decisions, 
 
 1. The (leneva Arbitration was composed of live members, in legard to whose 
 deliberations and conclusions Article II of the Treaty expressly provides that " all 
 questions considered liy the Tribunal, including the iinal Award, shall be decided 
 by a majority of all the Arbitrators." 
 
 2. A iioard of Assessors under the Ciencva Arbitration, in case the Tribunal 
 should not award a gross sum, was to be composed of three mend)ers. In the 
 action of this Hoard, Article X of the Treaty declares that "a majority of the 
 Assessors in each case shall be sullicient to a tiecision." 
 
 3. A Commission of three niendiers to determine reciprocal claims between 
 the two countries arising during the Civil War. Article XIII provides that "a 
 majority of the Commissioners shall bo sullicient for an award in each case." 
 
 4. Tlio Halifax Commission, com|)osed of three members, undistinguished, 
 among themselves, by any description of umpirage to either, and with no provision 
 in any form for an award by less than the whole number. The Treaty expressly 
 accepts awards, signed by the assenting Arbitrators, or Assc.sors, or Commis- 
 sioners under the othei Articles, while, in the case of tlie IlaliCax Commission, this 
 provision takes the place of such acceptance: "TlieCase on either side shall be 
 closed within a period of six months from the date of the organization of the 
 Commission, and the Commissioners shall be recjiiested to give their award as soon 
 as possible tliereal'ter." 
 
 The argument from this comparison is obvious. The High Contracting Parties 
 possessed a common systfmi of jurisprudence, according to which a reference to 
 Arbitrators ex vi termini required the Award to be the act of tiie Arbitrators, that is, 
 of all of them. The parties to an arbitration, ])ublic or private, might accord to 
 any lesser number the power of award, but express stipulations in the submission 
 alone cou'd carry that authority. Acting in full view of this rule, to which a. desired 
 exceptio;i needed to be expressed, in three cases, in the samt; deliberate and solemn 
 instrument, the High Contracting Parties imparted the authority io a majority by 
 careful and solicitous provisions to that end. In the case of the Halifax Commis- 
 sion, last in the order of the Treaty, and with the previous arrangements, in this 
 regard, in their minds and under their eyes, this power is withheld. It is impossible, 
 because it is plainly irrational, to say that a Treaty provision containing power to 
 a majority to bind, and a Treaty provision ex|)ressing no such authority, mean one 
 and the same thing. The High Contracting Parties have excluded any such 
 conclusion, i)y the sedulous discrimination which the text of the Treaty discloses. 
 
 T\) the countervailing suggestion that this variation from tiie system of the 
 Treaty in the case of the llalilax Commission is most reasonably accounted lor by 
 inadvertence on the part of the High .louit Commissioners, the answer is obvious. 
 If either of the High C(mtracting Parties should so allege, which it certainly would 
 not do without much deliberation, the suggestion would not alfect th.e argument 
 as to the meaning of the Treaty as it stooci, but would be in the nature of an appeal 
 to the other High Contracting Party to waive the objection and rcfo»ai the Treaty. 
 No doubt cases may exist where such appeals should be frankly responded to, 
 though against interest. 
 
 Hut, you will say to Lord Salisbury that the suggestion of inadvertence in the 
 negotiations, never to be lightly indulged in, overlooks an adequate and jircsump- 
 tively the real reason for the requirement of unanimity in the case of the Fislieries 
 Commission, while it was expressly waived in the other submissions of the Treatv. 
 
 In the matters of computation subn)itte(i in the several other references of the 
 Treaty, two circumstances distinguished them from that subjected to the Award of 
 the Halifax Commission. First, they were wholly matters of ileterminate proof, an 
 appraisement of the ships and cargoes destroyed by the " Alabama " and her 
 
14 
 
 ronsorls, an estimation of damages to persons or property siiHercd by individual 
 British snljjects or American citizens lor which reparation should be made — these 
 were matters of definite aflirmative proof in pounds or dollars before any award 
 I'.'ould be asked, and were subject to correction by ccpially definite opposing proofs 
 i)efore any award could he granted. Second, the assessments carried no measure- 
 ment of any still subsisting interests between the High Contracting Parties which 
 would survive the payment of the several awards. It was then quite suitable to 
 these references to accept the judgment of a majority and dispense with the 
 concurrence of both parties, as represented in the Commissions, in the results of 
 the contentions before them. 
 
 The matter sui)mitte(i to the Halifax Commission was dilTerent in nature, and 
 in the relations of the High Contracting Parties to the subject of contention, lioth 
 these traits of this dispute conspired to urge upon the High Contracting Parties 
 the need of every possible guaranty against unreasonable or illusory estimates on 
 the part of tlu; Commission to the prejudice of one party or the other. Besides, 
 this com|)utation touched a matter in which large classes and interests of either 
 community felt a concern, and it was essential that dissatisfaction with results 
 should l)e alleviated by conlidonce in the judgment. So vague a sul)ject of valuation 
 as the twelve years' prospective cat"h of mackerel within three miles of the shore 
 on tiie coasts of the United States and of the Provinces, so ditfuse a problem as the 
 distribution of the burdens of duties between producer and consumer, gave too 
 large a range for floating speculations, unless anchored to sober sense by the 
 requirement of unanimity. The permanent importance of these valuations in future 
 negotiations of liie two countries, forbade their submission to any Commission 
 uncontrolled by the necessary concurrence of the llcpresentatives of both countries, 
 in any award. The interests and feeling of the large populations, on the one side 
 and the other, dependent for prosperity, if not for livelihood, on these fisheries, made 
 the two Ciovernments careful to secure them, in any result, against a sense of 
 injustice as well as of disajipointment, by the conservative requirement of unani- 
 mity. 
 
 In submitting to Her Majesty's Government the failure of the Conunissioners 
 to come to the agreement which, in this interpretation of the Treaty, is requisite to 
 the validity of the Award, the (iiovernment wishes to lay no undue stress upon this 
 objection. If Her iM/ijesiy's fiovernment concurs in this construction of the autho- 
 rity conferred upon the Halifax Commission, ihis agreement between the Govern- 
 ments will enable them, presentiv, to make more complete, as well as more satis- 
 factory, arrangements for the reciprocal interests of the industry and commerce of 
 the Provinces and of the United States than at present exist. If, on the other hand, 
 Her Majestv's Govcrntnent shall announce to this Govern. nent their construction of 
 the Treaty to be tiiat the concurrence ol a majority of the Commissioners warrants 
 a valid award, notwithstanding the declared dissent of the tiiird Commissioner, this 
 Government will not refuse to accord to that opinion, thus expressed, all the weight 
 which it desires for its own views. You will therefore say to Lord Salisbury that, 
 upon such a declared disagreement upon the true interpretation of the Treaty in 
 respect of unanimity of the Commissioners, this Government will regard the main- 
 tenance of entire good faith and mutual respect in all dealings under the beneficent 
 Treaty of Washington as of paramount concern, and will not assume to press its 
 own interpretation of the Treaty, on this point, against the deliberate interpretation 
 of Her Majesty's Government to the contrary. 
 
 You will promptly communicate these views to Her Majesty's Government by 
 delivering a copy of this despatch to Lord Salisbury, and requesting an early 
 attention to its contents. • 
 
 I am, &c, 
 (Signed) WM. M. EVAllTS. 
 
 No. 2. 
 
 The Marquis of Salisbury to Mr, '*' Ish. 
 
 Sir, Foreign Office, November 7, 1878. 
 
 HER Mnjcsty's Goveniment have given their attentive consideration to the despatch 
 relating to the proceedings of the Halifax Fisheries Commission, addressed to you 
 hy Mr. Evarts, the Secretary of State of the United States, a copy of which you were 
 
15 
 
 !;()(hI c'lioiiuli to ijlacu in my liantis on tlie 10th ultimo; and I have no.v tho liononr 
 to maki- tlio i'oHowini;' obst-rvations in reply, which I shall tool greatly oblif^ed hy your 
 connuunieatin;;' to Mr. Hvarts with the least i)ossiI)le delay: — 
 
 ller Majesty's (iovernmeiit fully api)reciate tlie frankness with whieh Mr. Hvarts 
 has re(|uested you to eomnumieate to them the views of tiie (jiovernment of the United 
 States on this (luestion, and it is iheir desire to reeiprocate in tlie fulle^.t degree the 
 wish expressed hy Mr. Evarts to come to a complete and ex;jlicit understanding 
 between the two fJovcrnments as to the conlbrmity of the Award made by the 
 Commission to the terms of the Treaty of Washington. 
 
 I must, in the fnst instance, recall to your recollection the circumstances which led 
 to the organization of the Halifax Commission. 
 
 The Reciprocity Treaty of the oth June, 18.")4, between Great Britain and the 
 United States, terminated in ISiHJ, not from any desire on the part of ller iMajesty's 
 Government to put u period to its stipulations, but in conse(iuence of the notice provided 
 for in Article V of that Treaty having been given by the ITnited States' (.Jovevn- 
 ment. The nnitual ])rivilegcs in respect to free lishing and free trade in certain 
 l)rodnctions, which had under its operation been enjoyed by the inhabitants of the 
 United States and of Her Majesty's North American I'ossessions, thus came to an end. 
 The effect of this determination of the Reciprocity Treaty was to revive the ditliculties 
 incidental to the Fisheries question ; diliiculties so well known to both Governments 
 that it is needless for nie to enlarge upon them on the present occasion. 
 
 The danger, however, of collision between the lisherinen of the two nations began 
 to manifest itself soon after the termination of the lieciprocity Treaty ; and ller 
 Majesty's Government were anxious to come to a speedy and satisfactory solution 
 of the (piestion. With this view Her Majesty's Minister at Washington addressed, 
 on the -(ith January, 1871, a note to Mr. Fish, in which he stated that ller 
 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 l)et\veen 
 the two (ioveriunents as to the extent of the rights Ijelonging to the citizens of the 
 United States and Her Majesty's subjects respectively with reference to the Fisheries 
 on the coasts of Her ^lajesty's I'osscssions in K nth America, and as to any other 
 questions between them ail'ecting the I'dations of the United States towards tliose 
 Possessions. 
 
 As the consj;'.:.ation of these matters would, however, involve investigations of a 
 somewhat conijilicateii nature, and as it was very desirable that they should be thoroughly 
 examined, he was directed by Lord Granville to projiose 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 diiferent questions arising 
 out of the Fisheries, as well as all those afi'ecting the relations of the United Slates 
 towards Her ^lajesty's Possessions in Xorth America. 
 
 To this note JMr. Fish replied on the iWth .lanuary of the same year, and whilst 
 stating that the President shared with Her Majesty's Government the ajipreciation of 
 the importance of a friendly .'iml complete uiulers": nding between the two Govern- 
 ments with n-ferenee to the siibjects specially suggested for the consideration of the 
 jiroposed Joint High Commission, ho added that it would be desirable to include in the 
 deliberations of tliat Commi.<sion a consideration of the other questions then at smuc 
 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 (piestion, and to their anxiety to come to a satisfactory settlement of the 
 diliiculties 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 delil)eratioiis of that Commission was devoted to the dilHcult 
 and long-standing ([uestion 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 unre;-tricted 
 access to the inshore waters of Bi'itish Xorth America, Articles XVHl to XXV and 
 XXXII and XXXIll 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 liritannic Majesty that the 
 privileges accorded to the citizens of the United States under Article XVIII of this 
 
16 
 
 Trcnty nro of pioator value tliaii tliow accorded l)y Articles XIX nml XXI of this Treaty 
 to the subject H of Her Hritannic Majesty, and this assertion is not admitted l»y the 
 (loverninent of the L'nited States, it is further nftreed that Coiuniissioners slinll be 
 appointed to determine, hiivin^': refjard to the privilefres accorded by the United States 
 to the subjects of Her Britannic Majesty, as stated in Artic'es XIX and XXI of this 
 Treaty, the amount of iiny compensation which, in tiieir opinion, on^lit to be paid by 
 the Ciovernnient of the Uinted States to the (iovernnient of Her Mrilannic Majesty in 
 return for the privilep^es accorded to tlie citizens of the Uniteil States under 
 Article XVI 11 of this 'I'reaty ; and that any sum of money whicii tlie said Commissioners 
 may so award sliall l)e paid by the United States' (Jovernment, in a gross sum, within 
 twelve months alter such Award shall have been t>iveii.'' 
 
 The Acts neccHsary to enable the several Articles of the Treaty relatina; to the 
 lisberies to l)e carried into effect were passed by the Imperial Parliament of Great 
 Britain on the (Uli Anj-ust, 1.^72; by the Parliament of Canada on the 1 Ith June, lH72; 
 by the Le<>islature of Prince Hdward Island (which did not at that lime form part of 
 the Dominion) on the 2iltli Juni'. \X~J, by the Colony of Newfoundland on the 
 i'Ktli March, IS74; and by the United States' Conuress on the 2:.th February. lS7:i. 
 So Kciupubius, nn)reover, were Her Majesty's Government that Hinted States' eitizeus 
 should i'lijoy in tlie lullest degree the benefits secured to them under the Treaty, 
 that iniiteil States' lishermen were admitted to the practical uso of the inshore fishing 
 grounds in advance of the formal Legislative Acts necessary for that purpose, and 
 this concession was acknowledged l)y 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 I'ritish waters and the jiart 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 enjoynuuit has 
 been had and cannot be recalled. AVhether any and what sum was to be ])aid by 
 the Government of the United States for the rights thus eonceded was to be determined, 
 and determined without appeal, by the Tribunal constituted under the Treaty. 
 
 United States tishermen having entered into tli(> enjoyaient of the jn-ivilcgeH thus 
 secured to iliem, it became necessary to take imn\ediate steps for the constitution of the 
 CommisHion ajjpoiiited to meet at llalil'ax in tho manner prescribed by the Treaty. 
 
 Various cireumstances, however, with whicli your Government are familiar, ccmtri- 
 buted to occasion delay in the complete organization of the Commission, and it was not, 
 therefore, until the 1st March, 1S77, 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 ii\ the manner jirovided for by Article X.XIIl of the Treaty. Ilia 
 Excellency thereupon named M. Maurice Delfosse, the Belgian Minister at Washington, 
 and apprized the Governments of CJreat Britain, the United States, and Belgium of the 
 selectnm thus made. 
 
 Her Britannic JMajesty's Government having previously ai)i)ointed Sir Alexander T. 
 Gait to be their Commissioner, and Francis Clare Ford, l"]s(|., to be their Agent, and the 
 Government of the United States having similarly appointed the Honourable Ensign 
 H. Kellogg to be their Commissioner, and the H(mourahle 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 Commis- 
 sioners, the loth Jime, 1S77, was fixed for the first day of meeting. 
 
 The Commission was accordingly organized by holding the first conference at the 
 City ot Halifax on that day, when all the Commissioners were present and produced 
 their respective powers. The Honourable Dwight Foster and Mr. J'ord 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 ajjpointed by him, the three 
 Commissioners proceeded, in accordance with the XXlIlrd 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, 
 
 -^ i 
 
ed 
 
 -. > 
 
 17 
 
 niul at the ncvt Conference, lulil on the .'Witli iliiy of July, tlic Case of Her MajeHty's 
 (Jovernnient was ojiened, and was concUided on the l.'^th d;iy of Seplembv. ; tliat 
 of tlie United Stctes of America was opened on the 19th of the same montli, and closed 
 on the :.'4tli day of Oetoher. 
 
 It is unnecessniy that 1 should here recite each step in these lenj^tliened procecd- 
 ini^s : it will he Millicii'iit to note that ('i;^■hl^ -foil!' witnessi's in ail were exam ned on 
 behalf of ller Britannic Majesty's (idvernnK'nt and suventy-ei^^ht on the part of the 
 United Stales of America. 'I'lu-se witnesses were suhjected to the most searching' 
 cross-examination hy Counsel of the f^reatest ahility ; and anionj^st those exaniinetl 
 were to he found the iu>mes of numy persons who, from their ^pcLial knuwledf;e 
 of the suhject, hoth jn'actically and ^ienerally, were well (jualilied to express an 
 ojunion, and whose evidence was entitled to the greatest weiyht in the investij^ation 
 of the matter. 
 
 Three hundred and nineteen aHidavits were produced in support of the Case of 
 Her Britannic iMajesty's (Government, and :,'f^n in support of that oi the United tStates ; 
 the deponents comprisinj;- those who were also in a position to give valuable and con- 
 vincing testimony with re,'>ard to the Fisheries, but who from various causes were unable 
 to give oral evidence before the Coiar 's^ion. 
 
 A voluminous mass of documeiitnry 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 ca-e. 
 
 The Commission lield in all seventy-eight sittings, of about four hours' duration 
 each, and tiie proceedings termiii.ited on the "JJ^rd i!ay of November, 1877, by the 
 announcement of the following Awaril :— 
 
 "The undersigned Commi.ssioncrs appointed under Articles XXII and XXIil of the 
 Treaty of Washington of the 8lh May, 1871, to determine, having regard to the privi- 
 leges accorded by the United States to the subjects of Her Biilannic Majesty, as 
 stated in Articles XIX and XXI of said Treaty, the amount of any compensation 
 which in their opiriion ought to i)e paid by the CJi.verninent of the United States to 
 the fJovernment of Her Britannic Majesty, in return for the privileges accordetl to the 
 citizens of the United Slates, under Article XVIII of the said Treaty; 
 
 " Having carefully and imjiartially examined the matters referred to them according 
 to justice and ecpiity, in conformity with the solenm declaration made and subscribed by 
 them on the lifteenth 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 (lovernment of the United States to the (iovernmenl of ller Britannic ^Majesty, 
 in accoidance with the provisions of the said Treaty. 
 
 " Signed at Halifax, this twenty-third d.iy of November, one thousand eight 
 liundred and seventy-seven. 
 
 (Signed) "Mavuick Dklfossk. 
 
 " A. T. (lALT." 
 
 "The United States' Commissioner is of opinion that the advantages accruing to 
 Great Britain under the Treaty of Washington are greater than the advantages con- 
 ferred on the United States by the said Treaty, and he cannot, therefore, concur in the 
 ccmchisions annoiniced by his cr-lleague:-. 
 
 "And the American Commissioner deems it his duty lo state further that it is ques- 
 tionable whether it is competent for the Board to nnike an iVward under the Treaty, 
 except with the unanimous consent of its members. 
 
 (Signed) "E. H. Kkllogg, 
 
 " Coniminsion^r," 
 
 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 (pioted ; and it must be observed that the whole of the pro- 
 ceedings were held in strict conformity with the terms of the Treaty of Washington; 
 whilst the Award was given by a majority of the Commissioners in the very terms 
 contained in Article XXII of the Treaty. 
 
 In the despatch which has been communicated to Her Majesty's Government, 
 ]\Ir. Evarts seeks to invalidate the Award, which is the result of this exhaustive investi- 
 gation, upon the ground that, in estimating the claims of Great B.itain, the Commis- 
 sioners 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 
 [1365] D 2 
 
18 
 
 fill' Award wliidi pivos nny coimlpimncc to flic siipjin-iition tliat flic r<)imiii'<>*ii)iiprs 
 Iriivi'lk'tl licyoiiil I lie liniils as>ii;iiril to tlicin iiv tin- Tri'iitv. Mr. I'lvavls" ar^^imu'iit iti 
 I'avour ot'tliiH ''ontrntioii is ontirt'ly (IimIiu'imI from wiiat lie f(Hixi(Krs lo In- flic iiiannitiuK* 
 1)1' till' Hiiiii a\\aicl( ti. If is. 111' confiMuls, so tar in cvci'ss of wlial llic I'niti'il States' 
 (Jdvi'riiiiii'iit iii'Iicvc to III' llic frill' solution ol'llii' proiili'in Milmiilti'il liy llu- 'rrcalv, llmt 
 somi' factor wliicli the Tivuty lias not recojriiizeil must necessarilv, in his opinion, have 
 Ill-en iiii|iortiMl info the oalenlation. 
 
 Mr. Mvarts proceeds to niv<' in detail the considerations hv which, in his jn' ncnf, 
 flic result iirrivcd at should l»c tested, lie ^Hvcs his reaNons f(ir lielievinu^ t)"" ' i»^'rel 
 
 is the only lisli to whose capfuri' in the wafers opened hy (ireat Hritain any should 
 
 he assigned, and that no account is to he taken o'' herring, halihnt, cod. liaKc, pollack, 
 or bail lislics. He (•oniputcs the iiuuihcr of inackeiel which the United Stales' llNlicrnien 
 lia^e caii;:iit williin a three-iiiile line IVoiii the s' ore duriii;;' the years of the 'i'reaty 
 period which have cxiiirid ; and inlers from it the niiniher which they nre likely to 
 cnfcli within flic same area dnrinn' the interval that remains; and he concludes this hranch 
 of his ar^iiiiient Ity estiiiiatiiij;', on various hypolhescs, the jtrolit wliicli the United States' 
 fisherman is likely to have made from the mackerel which he has proliahly cauuhf. On 
 the other side, he estimates at a hinh value the prolit which flic Hritish iishi'niieii have 
 derived I'nun the opeiiiii;:- of the markets of the I'liited States; and conclude'^ that the 
 sum lixed hy the Award is so much larger tliaii thi'se coiisideiations would have Justified, 
 that the I'liited Stato' (iovcriiiiieiif can only explain its maynitnde on the asMimption 
 that the Commission has mistaken the »|uestioii that was referred to it. 
 
 That .Mr. Hvarts" reasonin;;' is ]iowerlul it is not necessary for me to say ; nor, on 
 the other hand, will he lie surprised to hear that Her .Majesty's (Jovernmenl, still retain 
 the helief that it is cajiahle of refutation. Hut, in their opinion, they would not he 
 justified in followiiii;' him into the details of his iiriiiiment. 'I'liese very matters were 
 examined at yreat Icnufli and with conscji-utious miiuifiMiess !)y the Commission whose 
 Award is niider discussion. The decision of the majority was given after full heariii<j 
 of all the considerations that either side was aide to advance ; and that decision, within 
 the limits ui the matter suhmitted to them, is, under the Treaty, witiiout a])iieal. The 
 ariiumeiit of .Mr. I'iVarts amounts to a review of their Award u|)oii the (luesfions of fact 
 and of pecuniary comjiutation referred to them. He ccmtends that the sum awarded is 
 excessive ; and that therefore the Award must have been arrived at hy some ille.i;itiniate 
 process. But to ar^ue auniiist the validity of an Award, solely on the f^round that 
 tiie ciinchision arrived at hy the Arbitrators on the very point referred to them is 
 erroneous, is in effect the same thinj? a.s to dispute the judgment which they li?.ve formed 
 upon the evidence. 
 
 Her ^hijosty's Government do not feel that it is their duty to put forward any 
 opinion, ad ver.se or favourable, to the decision which the majority of the Commissioners 
 have passed upon the attidavits and depositions which they had to consiiler. Her 
 IMajesty's Government could not do so without uiidertakinj^ the same laborious investiga- 
 tion as that which was performed by the Commission, a task for tvhicli the interval 
 which has been left between October lU, the day on which iSfr. I']varts' despatch was 
 delivered to me, and November 23, the day on which the payment awarded is to be 
 made, would certainly not suffice. 
 
 Hut tiiey are precluded from passing in review the judgmen of the Commission 
 by a far more serious disqualitication. They cannot be judges of ippeal in this cause, 
 liecause they have been litigants. As litigants they have expressed the view upon the 
 facts which they felt bound in that cajiacify to maintain. Their computations have 
 been totally different in method and result from those which the American Counstd 
 sustained, and which, in part. My. ]'>arts reiterates in his despatch. 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 Agenis could command, that 15,000,000 dollars was the legitimate 
 comijensation which, under the Treaty, was their due. The majority of the Commis- 
 sioners has tlecided to reduce that chiiin nearly by two-thirds. Having formally engaged 
 to submit the maiter 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 thcii 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 judiiuient considerations which the Treaty did not autliorize them to entertain. 
 Her Majesty's Government can only accept now, as on similar occasions they hav(> 
 accepted before, the decision of the Tribunal to which they have solemnly and volini, 
 sarily submitted. 
 
10 
 
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 at 
 
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 111 
 
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 to 
 ell 
 
 At tho cloMO i)t" hi« tli'Hpatch Mr. KvnrtHrcforH toa coiisidi'mtion, wliiili I oimlit not 
 to liiiHs over witlioiit ohsiMViitioii, i1h>iil;1i Im' docs jiot plncc it in tin' liist rank amoiin the 
 ohji'ctioiiM wliicli 111' raises against tin- Auard. lie «'alls attciilioii to tin- larl tliat llu' 
 Awnrd of tlic ('oniiiiission was not iinanlMiouH, and that in tlu> 'l'ri>aty of \Vasliin!.rt(<ii 
 no stipidntion Ih, in this nisc, made that the decision of the majority is lo ho 
 bindiii<;. 
 
 The opinion (hat, accordinp; tr) tho 'IVeiity of Washiiij^ton, the Fishery Commission 
 was incapahle of pronouncini; any decision nidess its nicinhers were iinnnimoiis, is one 
 in whicli Her Majesty's (tovernment are nnalde to cttnciir. 
 
 It is not diliicidt to proihic" from text-hooks, even <if very recent date, authority for 
 the (hictrine that in Inlernational Arhitratioiis the majority of tlie Arbitrators l)inds tlio 
 minority unless tln' conlnuy is expressed. 
 
 " Halleck's International Law," edited by Sir Sherstonc Baker, 187H, says (Chap, xiv, 
 8cct. fl) :— 
 
 " Tiie followinff IJiiles, mostly derived from the Civil Law, have been applied to 
 Tnterimtioual .Arbitrations where not otherwise ])rovided in the Articles of l{efcrenco. 
 If tiiere be an uneven number the deeisiuu of a nuijority is conclusive." 
 
 IJhmtschli (Sect. 4!»n) says :— 
 
 " lia decision est i)rise i\ la majorite dcs voix." 
 
 Calvo (i, p. 7!M), lays down: — 
 
 "A dcfaiit d'oblif;ations nettement t nieces dans I'aete do compromis, les arbitres, 
 ])()ur s'ac(|uitter de Icur niaiidaf, se uuident d'aprc'^s les ivules tracces par le droit civil : 
 ainsi ils doivent proci'der conjniiitement. discuter et delibcror en comniun, decider a la 
 majorite." 
 
 I am not aware of any authorities who, in respect to International Arbitrations, could 
 be (pu)te(l in the ccmtrary sense ; and it would not be dillicuit to show, l)y a reference 
 to cases in the American as well as in the Knitlish Courts, that the same rule has 
 always been judicially ajiplied in the ease of Arbitrations of a pul)lie nature. 
 
 The lanjjuafje and stipulations of the Treaty itself, so far as they arc explicit 
 upon the subject, ])oiut to a similar conclusion. Mr. Kvarts, indeed, arifuos that the 
 reciuirement of unanimity was intended, because, while it is no*, disclaimed in the case of 
 the Fishery rights, it is disclaimed in the case of three otlu ■ Arbitratin;; Tribunals set 
 up by the Treaty. It is evident that, at most, this (miissicm would have left the matter 
 in uncertainty. The sui,f<;estion that the framcrs of the Treaty meant by their silence 
 to prescribe a mode of proceediiiff which, before a Tribunal thus constituted, is 
 unexampled, can only be accepted on the hypothesis that they were deliberately pre* 
 parini; an insoluble cimtroversy for those by whom the Treaty was to be executed. 
 
 It appears to me that if the lanjjuaRc employed in the case of the other Tril)unals 
 set up by the Treaty be examined carefully a more probable solution of (he diHiculty 
 may be found. The words used in each case arc somewhat peculiar, and lend them- 
 selves to the supposition that what the draftsman was thinkini^- of when he employed 
 them was not the question whether unanimity should or should not be required, but 
 under what circumstances the Tribunal sliould be held to be i'ally constituted for the 
 purpose of ffivinj; a decision. It was obvious tiiat in tlie course of a jirotracted 
 and manifold in(|uiry, in which questions would constantly come up for decision, it 
 was a matter of ureat ])ra( tical imi)ortance to lay down whether for each decision the 
 presence of the whole Tribunal was re(|uircd, or wlietlier any condition might be pre- 
 scribed under which, in spite of the absence of any one member from illness or other 
 cause, a valid decision mi<>lit yet be f^iveii. 
 
 The difficulty of conducting.;', on the more ri<;id rule, a leni^thened inquiry, 
 involving frer|uent decisions, is a matter of ordinary ex|)erience. 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 frameis 
 of the Washington Treaty adojjted an arrannement 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. 'J'hat this 
 is the meanin<>' of the three passac'cs in which the word ii ajorily a])]ieais may be 
 gathered both from the expressicms themselves and from the connection in which tliey 
 are foimd. The following is a portion of the first i)ara<iraph of Article XI 11 on the 
 Commission of Civil War Chiims : — 
 
 "They shall be bound to receive and consider all written documo^.+s or statements 
 which may be presented to them by or on behalf of the respective cJovernments in 
 su])port of, or in answer to, any claims ; and to hear, if required, one l;er^on on each 
 side, on behalf of each Government, as Counsel, or Agent for such Government, on each 
 
w 
 
 (iiid rvrri/ Mfptiralr iltiim. A mnjority of tlio CoiiimiKMonorN nIiaU hv Hiillicicnt for iiii 
 Awnrd in oach cjiho." 
 
 Wvw it in i'vidonl flint the nmlti|ilii'ity of (lie rlnimn wns (lie iimttor H|K'<'inIly 
 iinilcr (•oii'idoratioii ; iiml (liat '• tin- millicit'iicv <if ii iiiajorilv of the ('i>imiii'<->iini for 
 an Awnril" hah Hti|>tilnlr(i with n view to tlic posHililc dolny uiiicli the nqnircnwnt of u 
 full 'rriliiiniil in cnch cuxc niiulit ciitisiv 'I'liiil tlic iniijoiiiv slunild he >utlii-l('iit tor an 
 Award in tlic case of dm- nuMiihiT hi'iii;; alisi-nt wan a rule which it was nt'ccHHarv to 
 \ny down ; h»r wIkmv fr(M|iicnt di-cisioiiH arc not rf(|nir«'d. iirovinionx of the kind an- not 
 fn'^toniary. On the other hand, it is a iinivt'rHal pract I'l' that iijion ]iiddi<- Arhitrati<inM 
 ihu-i«'onHtittitod, in oasf of ditrircncf of opinion, tin* maiorit.v sli.dl pre ail. It is, tlurt!- 
 foro, consistent with soniul 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 siiperlhious. 
 
 'I'lie same reasoninn' is applicahle to tlie case of the fleneva Trihunal, which had to 
 decide on the alle;;ed failure of neutral duly in (Sreat IJritain as to seventeen dillerent 
 ships, hcsides (piestions arisinir in respect to damajfes. The Hoard of Assessors 
 which was provided in case the (Jeneva 'i'rihunal had not awarded a jxrtiss sum was a 
 (commission of Claims which would hiive had tt) adjudicate upon a v(>ry lar<;e numher 
 of individual losses. In the>e cases, therefore, as in that wliich has heen just atlvei ted 
 to, the Joint lli^-h C(unmission took a natural and a jinlicious course in providing that 
 a decision should not he invalid hy reason (d the rthsence cd' a meniher of the 'rrihnnul, 
 so lonu: as a majority concurred in the Award. 
 
 On the other hand, no such provision was neces-ary in the case of the Halifax 
 Commission, which, heyond (piestions of procedure, had hut one issue heforc it, and hut 
 one decision to ])ronoimce. In this case it was not necessary to lay down, as in the 
 other cases, that "a majority of the CommiHsioners shoidd he sntlicient for an Award," 
 or that "all (piestions should he decided hy a majority of «// the Arl)itnitors." 
 
 This construction of the Treaty appears to ller Majesty's Government more natural 
 and more respectful to the .loiiit lli;!;ii Commission than the assumption that, haviiin- 
 rcf>oIved to leave (me particular case lo a mode of Arhitration wliicli was entirely novel, 
 and wholly unlikely to issue in a decision, they carefully ahstaintd from the use of any 
 words to indicate the unusual resolution they . .id formed. 
 
 Ic further ajipears lo Her Majesty's tJovernmeut that a distinct intimation of the 
 true meanini; of the Joint Iliji;h Commission in respect to the Fishery Award is to he 
 found in the com|)osition of the Trihunal which they adopted, This constitution is 
 consistent with the intenti(m that the majority should decide; it is not consistent with 
 tile supposed intention that the dissent (d' one Commissioner should prevent any 
 decision from heinj;- pnmounced. The XXllIrd Article of the Treaty makes the 
 following? provision for the ccmstitution of the Tril)unnl: — 
 
 " The Connnissioners referred to in the preceding Article shall he appointed in 
 the followinij manner, that is to say : — 
 
 " One Commissioner shall he named hy Her Britannic Majesty, one hy the President 
 of the United States, and a third hy Her Britannic Majesty and the President of the 
 [Tnited States conjointly ; and in case the third Commissioner shall not have hcen 
 so named within a period of three months from the date when this Article shall take 
 effect, then the third Commissioner shall he named hy the Representative at London 
 of His Majesty the Emperor of Austria and King of Hungary. In case of the death, 
 ahsence, or incapacity of any Commissioner, or in the event of any Commissioner omitting 
 or ceasing to act, the vacancy shall he tilled in the manner hereinhefore provided for 
 making tlie original appointment, the period of three months in case of such suhstitution 
 heing 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 fshall, 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 ccpiity ; 
 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 a- its Agent, to represent it generally in all matters connected with the 
 Commission." 
 
 This is the ordinary term of Arbitration in which eacli side chooses an Arbitrator, 
 and an umpire is chosen hy an indifferent party to decide between the two. The appoint- 
 ment of the umpire is of no utility, the precautions for securing his impartiality are 
 
 t I 
 
 '1 
 
iiiimonninp:, if tlu< adverse vote of one of the ArltitratoiN luay deprive hid deciNioii of till 
 force ami elfeet. 
 
 Ill oitliiiarv |>linise>)l()ifv the deii'^ioii of ii l)od\ nf menilK'rs incaiis a (lei-ition 
 eome to hy a majoritv of voiceH. In the '"oiinnon use nml niidcrstainliiiji of laiijirnafje, 
 this is the iiilcriiri'tatiori witicli sii;fy;ests it-<('lf to every reader, wiieii il is Mtateil that 
 a miiiiiiir i>\' men have i'\|iressed an <i|iiniiin or have arrived ut a de'erinination. 
 The rc(|nireinent of unanimity is the exeeplioii, and therefore can only he conveyed 
 hy an explicit >talement. Tiiere ure, of conrwe, wrlNknovvn exception^, ns in (hi- ca^e 
 of trial hy jury. Ihit in such <'aM's the constilution of the decidiiij; iiody is diaiiieirically 
 opposed to that adopted in the case ot the Ki.shery Connnission. Instead of a provision 
 that two-thirds shall he named hy the parties to the suit, the most elahorate precautions 
 are taken that the whole hody shall he unliiassed. It is ol)vions that when unanimity 
 is to he riMpiired, when any one memiter of tiie di-cidiny hody is to have the po^u'r of 
 nullifyiii;,' all the proceedinijs ami preveutinj; a tU'cision, such an arranj;ement will only 
 be endurahle on the condition that ea(di meinher shall he so elioscn as to he as far as 
 possihie free Irom any inclination to exenisi' that power on one side rather than on the 
 otln'r. ll'a jiyy weie constiliUeil on the principle that the IMaiiitili' should choose one- 
 third of it and the Defendant another thir<l, very few persons would he found to expose 
 themselves to the cost of an action at law. Had it heen known five years a yo that an 
 i\ward would he prevented hy the dissent of one of the nn'miiers of an arhitration 
 constituted on the same princi[)le, thou;;h I tlo not venture to conjecture what the course 
 of the I'nited Stales' (Jovernment would have heen, I feel confident that l'2nj,'laml 
 would have declined to enter upon so unfruitful a litijuation. 
 
 Her Majesty's (Jovernineiit may appeal to a cogent proof that in acceptin;,^ this 
 Arhitration they did not contemplate thai the .Vward was liahle to he prevented hy the 
 re(piiieinent of unaidmity. Heiievin<;, in ai>;reeincnt with the majority of ihc Com- 
 mission, that they were lie.ivy losers hy the exchann'e of com-essions containeil in 
 Articles Will, XIX, and \\\ id' the Treaty, they nevertheless Iw.e for live years 
 allowed those concessions to come into force, trustinj^ to the compensation which 
 the Comnussion would ff\vQ to them. Tiiat they iuive done so is a sullicicnt proof 
 that they did not anticipate a construeticm of the Treaty which would make the delivery 
 of an .Vward ahiu)st impossihle. A valuahle jtroperty has actually pa.ssed into the 
 enjoyment of others, and cannot he r»!called The jjrice to he paid for ii was to he 
 determined later hy a Tril)unal aj^reed upon hetween the parties. Is it conceivahle that 
 tiiey should Imve deliherately constituted a Trihunal for this purpose, in which a decision 
 could he wholly prevented hy the dissent of a numher nounnated hy the party to whom 
 the property had passed ? 
 
 Keciprocatiii"' cordially the courteous and friendly sentiments hy which Mr. Kvarts' 
 lanfiua^e is inspired. Her .Majesty's (Jovermnent feel conlident that the United States' 
 (Jovernment will not, upon reriection, see in the ccmsiderations 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. 
 (Signed) SALISBUKY. 
 
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