The difficulty of conducting, on the more rigid rule, a lengthened enquiry, involving frequent decisions, is a matter of ordinary experience. A common mode of escape from it is to fix some number, short of the entire complement, as the quorum or minimum number which must be present to give validity to a decision. The framers of the Washington Treaty adopted an arrangement somewhat different in form, but similar in effect. They laid down that the decisions should be valid so long as they were adopted by a number not less than the majority of the whole body. That this is the meaning of the three passages in which the word majority appears may be gathered both from the expressions themselves and from the connection in which they are found. The following is a portion of the first paragraph of article 13 on the Commission of Civil War Claims:

They shall be bound to receive and consider all written documents or statements which may be presented to them by or on behalf of their 1393 respective Governments in support of, or in answer to, any claims; and to hear, if required, one person on each side, on behalf of each Government, as counsel, or agent for such Government, on each and every separate claim. A majority of the Commissioners shall be sufficient for an award in each case."

Here it is evident that the multiplicity of the claims was the matter specially under consideration; and that "the sufficiency of a majority of the commission for an award" was stipulated with a view to the possible delay which the requirement of a full Tribunal in each case might cause. That the majority should be sufficient for an award in the case of one member being absent was a rule which it was necessary to lay down; for where frequent decisions are not required, provisions of the kind are not customary. On the other hand, it is a universal practice that upon public arbitrations thus constituted, in case of difference of opinion, the majority shall prevail. It is, therefore, consistent with sound principles of interpretation, to assume that the phrase was meant to apply to the point on which a provision was necessary, and not to the point on which a provision was superfluous.

The same reasoning is applicable to the case of the Geneva Tribunal, which had to decide on the alleged failure of neutral duty in Great Britain as to seventeen different ships, besides questions arising in respect to damages. The Board of Assessors which was provided in case the Geneva Tribunal had not awarded a gross sum was a Commission of Claims which would have had to adjudicate upon a very large number of individual losses. In these cases, therefore, as in that which has been just adverted to, the Joint High Commission took a natural and a judicious course in providing that a decision should not be invalid by reason of the absence of a member of the Tribunal, so long as a majority concurred in the award.

On the other hand, no such provision was necessary in the case of the Halifax Commission, which, beyond question of procedure, had but one issue before it, and but one decision to pronounce. In this case it was not necessary to lay down, as in the other cases, that 66 a majority of the Commissioners should be sufficient for an award," or that "all questions should be decided by a majority of all the arbitrators."

This construction of the treaty appears to Her Majesty's Government more natural and more respectful to the Joint High Commis

sion than the assumption that, having resolved to leave one particular case to a mode of arbitration which was entirely novel, and wholly unlikely to issue in a decision, they carefully abstained from the use of any words to indicate the unusual resolution they had formed.

It further appears to Her Majesty's Government that a distinct intimation of the true meaning of the Joint High Commission in respect to the Fishery Award is to be found in the composition of the Tribunal which they adopted. This constitution is consistent with the intention that the majority should decide; it is not consistent with the supposed intention that the dissent of one Commissioner should prevent any decision from being pronounced. The XXIIIrd article of the treaty makes the following provision for the constitution of the Tribunal:

"The Commissioners referred to in the preceding article shall be appointed in the following manner, that is to say:

"One Commissioner shall be named by Her Britannic Majesty, one by the President of the United States, and a third by Her Britannic Majesty and the President of the United States conjointly; and in case the third Commissioner shall not have been so named within a period of three months from the date when this article shall take effect, then the third Commissioner shall be named by the representatives at London of His Majesty the Emperor of Austria and King of Hungary. In case of the death, absence, or incapacity of any Commissioner, or in the event of any Commissioner omitting or ceasing to act, the vacancy shall be filled in the manner hereinbefore provided for making the original appointment, the period of three months in case of such substitution being calculated from the date of the happening of the vacancy.

66

'The Commissioners so named shall meet in the City of Halifax, in the Province of Nova Scotia, at the earliest convenient period after they have been respectively named, and shall, before proceeding to any business, make and subscribe a solemn declaration that they will impartially and carefully examine and decide the matters referred to them to the best of their judgment, and according to justice and equity; and such declaration shall be entered on the record of their proceedings.

"Each of the High Contracting Parties shall also name one person to attend the commission as its agent, to represent it generally in all matters connected with the commission."

This is the ordinary form of arbitration in which each side chooses an arbitrator, and an umpire is chosen by an indifferent party to decide between the two.. The appointment of the umpire is of no utility, the precautions for securing his impartiality are unmeaning, if the adverse vote of one of the arbitrators may deprive his decision of all force and effect.

In ordinary phraseology the decision of a body of members means a decision come to by a majority of voices. In the common use and understanding of language, this is the interpretation which suggests itself to every reader, when it is stated that a number of men have expressed an opinion or have arrived at a determination. The requirement of unanimity is the exception, and therefore can only be conveyed by an explicit statement. There are, of course, well-known exceptions, as in the case of trial by jury. But in such cases the constitution of the deciding body is diametrically opposed to that adopted in the case of the Fishery Commission. Instead of a provision that two-thirds shall be named by the parties to the suit, the

most elaborate precautions are taken that the whole body shall 1394 be unbiassed. It is obvious that when unanimity is to be re

quired, when any one member of the deciding body is to have the power of nullifying all the proceedings and preventing a decision, such an arrangement will only be endurable on the condition

that each member shall be so chosen as to be as far as possible free from any inclination to exercise that power on one side rather than on the other. If a jury were constituted on the principle that the plaintiff should chose one-third of it and the defendant another third, very few persons would be found to expose themselves to the cost of an action at law. Had it been known five years ago that an award would be prevented by the dissent of one of the members of an arbitration constituted on the same principle, though I do not venture to conjecture what the course of the United States Government would have been, I feel confident that England would have declined to enter upon so unfruitful a litigation.

Her Majesty's Government may appeal to a cogent proof that in accepting this arbitration they did not contemplate that the award was liable to be prevented by the requirement of unanimity. Believing, in agreement with the majority of the commission, that they were heavy losers by the exchange of concessions contained in articles 18, 19, and 21 of the treaty, they nevertheless have for five years allowed those concessions to come into force, trusting to the compensation which the commission would give to them. That they have done so is a sufficient proof that they did not anticipate a construction of the treaty which would make the delivery of award almost impossible. A valuable property has actually passed into the enjoyment of others, and cannot be recalled. The price to be paid for it was to be determined later by a Tribunal agreed upon between the parties. Is it conceivable that they should have deliberately constituted a Tribunal for this purpose, in which a decision could be wholly prevented by the dissent of a member nominated by the party to whom the property has passed?

Reciprocating cordially the courteous and friendly sentiments by which Mr. Evarts's language is inspired, Her Majesty's Government feel confident that the United States Government will not, upon reflection, see in the considerations which have been advanced any sufficient reason for treating as a nullity the decision to which the majority of the commission have arrived.

I have, &c.

APPENDIX (F).

Letter from Mr. Anthony St. Jno. Baker to Lord Castlereagh, November 28, 1815.

(No. 37.)

WASHINGTON, November 28, 1815. MY LORD, I had the honour to receive on the 19th instant by the Messenger Williams, who arrived at New York in the Chesterfield Packet Boat, Earl Bathurst's Dispatches Nos. 7, 8, 9, 10 and their Enclosures, together with the Ratification of the Commercial Convention signed at London on the 5th of last July.

I lost no time in requesting an Interview with the American Secretary of State which took place yesterday, at which in compliance with the Instructions contained in Earl Bathurst's No. 8, I proceeded to point out the necessity which existed under the present circumstances of the world, of restricting the intercourse of all Ships and Vessels, British as well as foreign, with the exception only of those belonging to the East India Company, with the Island of St. Helena, and the impossibility therefore of complying with that part of the third Article of the Commercial Convention lately signed between the two Countries, by which that Island is made one of the ports of refreshment for the vessels of the United States bound to the East Indies or China. I then acquainted Mr. Monroe that I had received the Prince Regent's Ratification of the Commercial Convention, and had been empowered to proceed to the Exchange, but had been commanded in making this notification, at the same time to communicate to the Government of the United States an explicit declaration as to the intentions of His Majesty's Government with respect to the prohibition of all intercourse with the Island of St. Helena, while it should remain the residence of Napoleon Buonaparte. I remarked that the present stage of the transaction, before the Treaty had been sent to the Senate, was peculiarly appropriate for making this communication, and delivered to him a Note, a copy of which is inclosed, notifying my readiness to exchange the Ratification, and transmitting the Declaration which I had been commanded to make, stating that I had kept these papers until the day which he had appointed for the interview, in order that their delivery might be accompanied with the above declaration.

Mr. Monroe received these Notes, and after reading them attentively, observed that they would be laid before the Senate with the Treaty, and that the President would determine whether any previous communication to me respecting them was necessary. He said very little on the subject, and did not appear to consider the alteration to be of very material importance, although to be regretted, as depriving the vessels of the United States of one convenient port of refreshment.

I availed myself of this opportunity to mention, as a topic connected with the Commercial Treaty, the Order in Council equal

izing the duties in England on certain goods imported and 1395 exported in British and American Vessels, and pointed out the want of reciprocity which existed in this Country, no corresponding measure having been adopted by the Executive of the United States. Mr. Monroe was disposed at first to assign as a reason for this, that the Order in Council referred to had never been officially communicated either to Mr. Adams or himself, but afterwards added that the Powers which the President possessed on the subject, derived from the Act repealing the discriminating duties, passed at the close of the last Session of Congress, could only be exercised towards another Nation in the event of an equalization on its part of the duties on Tonnage as well as goods, the former of which were not mentioned in the Order in Council. He observed however, that Congress was on the point of assembling, and that as a consequence of the Ratification of the Treaty, the duties both on Tonnage and Goods would be equalized in the two Countries. I endeavoured to impress upon Mr. Monroe the justice of the claim which it might be expected would be made for a remission of the Extra duties levied in the United States on British goods, subsequently to the date on which the Order in Council went into operation in England with respect to American cargoes.

I next proceeded to fulfil the instructions on the subject of the fisheries contained in the Dispatch No. 10, by recapitulating to Mr. Monroe what had passed between us on that point during the summer, recalling to his memory the note which he had addressed to me respecting the conduct of His Majesty's brig Jaseur, and my reply, and informing him that the language which I had held had been approved of by His Majesty's Government. In order to make the communication as clear and distinct as possible, I then read to him the two concluding paragraphs of Earl Bathurst's dispatch.

In reply Mr. Monroe made very few remarks, but they tended to show that his opinion respecting the claims of the United States in consequence of the peculiar character attributed by them to the Treaty of 1783, remained unshaken. He expressed a desire of availing himself of the first convenient opportunity to converse further on the topic, but gave me to understand that Mr. Adams had been directed to negotiate in London an arrangement between the two Countries respecting the forces to be maintained on the Lakes, the intercourse on the frontier, and other subjects connected with the North American Provinces, amongst which this claim of the United States might be included.

During this interview after acquainting him with the steps taken by His Majesty's Government towards the execution of the Articles of the Treaty of Ghent relating to boundary, I requested to know whether any similar measures had been adopted by the United States. He informed me that two Commissioners, Mr. Holmes of Massachusetts and General Peter B. Porter of New York, had been already appointed, and that a third would be named in a few days. I have, &c.

ANTHONY ST. JNO. BAKER

To the Right Honble. Viscount CASTLEREAGH, K. C.,

&c. &c. &c.