AWARD OF THE FISHERY COMMISSION.

DEPARTMENT OF STATE, May 16, 1878.

I have the honor to lay before you the papers which relate to the subject of the fisheries as submitted to the determination of a Commission by certain provisions of the Treaty of Washington, and as considered before such Commission in evidence and argument, and the result of the deliberations of the Commission, as announced by the Commissioners at the conclusion of their labors. These papers embrace all the authentic documents of the transaction, commencing with the negotiation of the pertinent articles of the Treaty of Washington, running through the conduct of the investigation before the Commission to the result reached by the Commissioners, and closing with the report of the Agent of the United States of such proceedings before the Commission and their result. When communicated to Congress they will present to its attention such materials for legislative action in the premises as are in the possession of the department.

The selection of the three Commissioners in the mauner pointed out by the treaty had been completed by my distinguished predecessor in office, just before I entered upon my duties, and the Agent on the part of this Government" to represent it generally in all matters connected with the Commission," as provided in the treaty, had received his ap poinment some years before. The treaty enjoined upon the Commissioners that they should proceed with the organization of the Commission "at the earliest convenient period after they have been respectively named," and I deemed it important that counsel as competent and suitable as I could command from the profession should be promptly placed at the service of our Agent, to aid in the maintenance of the case of the United States before the Commission. I thought the government fortunate in being able to secure the professional aid of lawyers of such general ability and special qualifications as Mr. Dana, of Massachusetts, and Mr. Trescot, of South Carolina. Upon an examination of the record of the proofs and arguments made before the Commission, I am happy to concur in the judgment which our Agent, Mr. Foster, expresses in his report as to the merit and value of the labors of these accomplished counsel in the conduct of the case, and I am quite sure the ability, fidelity, vigilance, and circumspection shown by Mr. Foster himself in the preparation, the production, and the enforcement of the case of the United States, deserve and will receive the fullest approval of all departments of the government that shall have occasion to give the subject any consideration.

In the preparation and presentation of the proofs, I was able to make use of the unrivalled knowledge and complete intelligence of the whole subject of fish and fisheries possessed by Professor Baird, the United States Commissioner of Fish and Fisheries, who gave to the agent and consul of the United States, during the session of the Commission at Halifax, the benefit of his attendance and scientific instruction in the selection and production of evidence on our part, and in criticism and

correction of that adduced by the British agent and counsel. It gives me, also, pleasure to concur in Mr. Foster's praise of the valuable serv ices, in connection with the case of the United States, of Mr. Babson, the collector of customs at Gloucester, the principal fishing port of the country, and of Mr. Jackson, our experienced and excellent consul at Halifax.

In looking back upon the conduct of the case of the United States before the Commission, I am not able to discover any failure of ability or attention on our part in any matter calculated to secure a just and satisfactory determination by the Commissioners of the matter submitted to them. If that determination, as announced by the Commissioners, shall fail to satisfy our sense of right, as a disposition of the matter in contention before the Commission, the disappointment cannot be charged to any fault or omission on the part of our Agent and counsel in the presentation of our case.

In proceeding to lay before you the actual result of the proceedings. before the Commission for communication to Congress, with such recommendation in respect to its action thereupon as may seem to you expedient, I find it necessary to precede such observations upon the result itself, as seem to me appropriate, by a brief statement of the essential points of the contention between the two countries on the subject of the fisheries, and of the method which, it was hoped, had been happily provided by the Treaty of Washington for solving the dispute.

Upon the termination of the Reciprocity Treaty, the dispute about the fisheries, which was put at rest while that treaty was in operation, was remitted to its old and troublesome elements. When the subject was taken up in the negotiations which produced the Treaty of Washington, it appears from the protocol of the conferences on this subject which will be found among the papers now submitted, that the High Commissioners on the part of the United States regarded the participation in the inshore fisheries of the Gulf of Saint Lawrence (the matter under negotiation), as of very moderate pecuniary value, justifying only an offer of the sum of $1,000,000 for the right in perpetuity, to save the irritations and strifes inseparable from the vague and uncertain waterline of demarcation of privileges provided by the convention of 1818, which had been so fruitful of controversy between the two countries. On the other hand, the High Commissioners on the part of Great Britain evidently looked upon the possession of our markets for the products of the fisheries of the Dominion and adjacent parts free of duty, as the desirable consideration in exchange for our participation in their fisheries, with such make-weights in the negotiation in the way of further free trade as they might be able to persuade us to concede therewith. They persisted, therefore, in rejecting pecuniary measures of the value of a participation in the inshore fisheries and struggled for the renewal of free importations into this country, which had been enjoyed under the Reciprocity Treaty, to as large an extent as might be. The result of the conferences is shown in Articles XVIII to XXV of the Treaty, and disposed of the matter as follows:

I. A participation in the inshore fisheries of the Gulf of Saint Law rence is conceded to the inhabitants of the United States for a term of years, to wit: for twelve years from the commencement of the right. (Articles XVIII and XXXIII.)

II. A participation in the inshore fisheries of the United States north of thirty-ninth parallel of north latitude, is conceded to subjects of Great Britain for the same term of years. (Article XIX.)

III. Free importation into the United States of fish and fish-oil of all

kinds (except of inland lakes, and rivers falling into them, and except fish preserved in oil), being the produce of the fisheries of the Dominion of Canada or of Prince Edward Island was conceded for the same term of years. (Article XXI.)

IV. Upon an assertion by the Government of Great Britain that the privileges accorded to citizens of the United States under Article XVIII are of greater value than those accorded by Articles XIX and XXI to British subjects, which was not admitted by the Government of the United States, it was agreed that Commissioners shall be appointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of this treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States under Article XVIII of this treaty; and that any sum of money which the said Commissioners may so award shall be paid by the United States Government, in a gross sum, within twelve months after such award shall have been given." (Article XXII.)

The appointment of the "Commissioners" was arranged as follows:

One Commissioner shall be named by the President of the United States, one by Her Britannic Majesty and a third by the President of the United States and Her Britannic Majesty 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 representative at London of His Majesty the Emperor of Austria and King of Hungary. (Article XXIII.)

The order of procedure before the Commission is prescribed, and it is provided that "the case 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 requested to give their award as soon as possible thereafter." (Article XXIV.)

The Commission as organized consisted of Mr. Maurice Delfossee, the Belgian minister at Washington, named by the Austrian ambassador at London, presiding; the honorable Ensign H. Kellogg, named by the President of the United States; and Sir Alexander T. Galt, named by Her Britannic Majesty. It held its first conference on the 15th June, 1877; the case on both sides was concluded at the seventy-seventh conference, held on the 21st November, 1877, and the result of its deliberations was announced at the succeeding conference, held on the 23d day of the same month. This result is stated in the protocol of that conference, as follows:

The undersigned, Commissioners appointed under Articles XXII and XXIII of the treaty of Washington, of the 8th of May, 1871, to determine having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of said treaty, the amount of any compensation which in their opinion ought to be paid by the Government of the United States to the Government of Her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIII of the said treaty, having carefully and impartially examined the matters referred to them, according to justice and equity, in conformity with the solemn declaration made and subscribed by them on the fifteenth day of June, one thousand eight hundred and seventy-seven,

Award the sum of five millions five hundred thousand dollars in gold, to be paid by the Government of the United States to the Government of Her Britannic Majesty, in accordance with the provisions of the said treaty.

Signed at Halifax, this twenty-third day of November, one thousand eight hundred and twenty-seven.

MAURICE DELFOSSE.
A. T. GALT.

The United States Commissioner is of opinion that the advantages accruing to Great Britain under the Treaty of Washington, are greater than the advantages conferred on the United States by said treaty, and he cannot therefore concur in the conclusions announced by his colleagues.

And the American Commissioner deems it his duty to state further that it is questionable whether it is competent for the board to make an award under the treaty except with the unanimous consent of its members.

E. H. KELLOGG,

Commissioner.

Upon the announcement of this result, Mr. Foster, the agent of the United States, addressed the Commission, saying:

I have no instructions from the Government of the United States as to the course to be pursued in the contingency of such a result as has just been announced. But if I were to accept in silence the paper signed by two Commissioners, it might be claimed hereafter that, as agent of the United States, I had acquiesced in treating it as a valid award. Against such an inference it seems to be my duty to guard. I therefore make this statement which I desire to have placed upon record.

DWIGHT FOSTER, Agent of the United States.

The question arising upon the actual result of the deliberations of the Commission, in manner and form as announced by the Commissioners, and suggested by Mr. Commissioner Kellogg, "whether it is competent for the board to make an award under the treaty, except with the unanimous consent of its members," is one that can be treated and determined only between the two governments. The Commission could not adjudicate upon its own powers under the treaty, and did not attempt to do so. No consideration of this question has, as yet, arisen between the two governments. Quite in advance even of the organization of the Commission, in a debate in the Dominion Parliament in March, 1875, upon a motion "for an address praying for correspondence in reference to the compensation to be paid by the United States to Canada, under the Treaty of Washington, for the right of fishing in Canadian waters," the requirement of unanimity of the Commission, in any valid award, was distinctly stated by Mr. Blake, minister of justice. He said "that the amount of compensation that we would receive from our fisheries must be an amount unanimously agreed upon by the Commissioners, and that, therefore, we must be willing to accept such compensation as the American Commissioner would be willing to concede to us, or we should receive nothing."

While the Commission was in session, an equally distinct declaration of the British opinion of the requirements of the treaty, on this point, appeared in the columns of the leading newspaper of that country. The London Times announced in its issue of July 6, 1877, in the most unqualified terms, that "on every point that comes before it" [the Fishery Commission]" for decision, the unanimous consent of all its members is, by the terms of the treaty, necessary before an authoritative verdict can be given."

In this country no public discussion on this point seems to have arisen until since the conclusion of the labors of the Commission. It will be quite competent for Congress, in considering an appropriation to meet the proper obligations of the government under the treaty, to waive or to insist upon this objection to the validity of the award of the Commission for non conformity to the requirements of the treaty. In the absence of any declaration by Congress adverse to the validity of the award, it will not be the duty of the Executive to raise any discussion with the British Government upon this point. If, on the other hand, Congress should accompany the appropriation with an expression of its

opinion that the attention of the British Government should be drawn to the subject, the actual payment of the award might, so far as this point is concerned, well be made to depend upon the view which that government should maintain as to the meaning of the treaty in this regard. I think it may be assumed that neither the people of this country nor any branch of this government will desire to seek exemption from a money payment upon any judgment of its own upon a point of this nature under this beneficent treaty, unless it be so well founded as to secure the concurrence of the other High Contracting Party.

I pass now to an examination of serious importance, that is to say, a comparison between the award of the Commission in its substance, with the submission thereto under which the jurisdiction of the Commission and the limitation of its power over the matter in contention, between the two countries, are defined. That an award should comport with, and not transcend, the submission of the parties is a vital principle of all arbitrations, whether public or private, and its firm maintenance is essential to the preservation of this beneficent method of settling controversies between nations and individuals. Too ready or too severe an application of this rule, in reference to international arbitrations, is easily avoided by a recognition of certain manifest propositions. In the first place, the largeness of the subjects and the generality of the elements of controversies between nations preclude the vitiation of an award far exceeding the submission, unless upon a measure of disparity which cannot reasonably be overlooked and which cannot fairly be dis puted. In the second place, the absence of any possible resort to a common paramount judgment as to the rectitude of the objection to an international award, and the necessary renewal, therefore, or aggravation of the orginal controversy as the consequence of impugning the award may well be trusted to deter a government from attempting such criticism, except upon most certain and adequate grounds, and under the most urgent motives of avoiding still more serious mischiefs to the public interests.

The mass of testimony and the amplitude of argument produced be fore the commission, and submitted herewith, however carefully explored, will, I think, leave no doubt upon the main features of the controversy upon which the award should be tested in respect to its conformity to the submission. It is greatly to be regretted that the protocols of the conferences have preserved no record of the steps in the investigation, or of the methods of reasoning by which the widely diverse conclusions of the two Commissioners that concurred and the Commissioner that dissented, respectively, were reached. The promulgation of the judgments of the several Commissioners followed immediately upon the closing of the arguments, and was accompanied by no exposition whatever of the grounds of such judgments. In the absence of direct instructions from these sources it is necessary to unfold, from the proofs, the practical nature and character of the pecuniary interests which constitute the subjects to be compared in money value by the Commissioners, under Arti cles XVIII, XIX, and XXI, of the Treaty, to reach the result of a pecuniary award under Article XXII.

I. It will appear, indisputably, upon the proofs that the practical measure of the concession to the United States of Article XVIII, was the grant of a participation by our citizens in the inshore fisheries of the Gulf of Saint Lawrence; that is to say, of a free and equal right to take part in the fisheries within the three miles line instead of being excluded therefrom, as under the convention of 1818. It also appears from the proofs, that the fishery thus opened to us was the mackerel fishery, within