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The commissioners have always held their meetings and conducted their discussions apart from the surveyors; and I am not aware that the surveyors have ever claimed any right to participate in these deliberations, and much less to exercise a supervisory power over them.
In his opinion he says he is sustained by the Secretary of State, to whom he referred the question before giving his instructions to Mr. Gray.
If this be the true construction of the treaty, and the commissioners of the respective Governments are by themselves competent to conclude the question of boundary, without the intervention of the surveyors, it would seem to result that this important question is already settled against the United States. Certain it is, as appears by the report of the Secretary, that he so considers it, and the President transmits that report to the Senate without comment.
But, with all proper respect for the opinions of the two Secretaries, the committee are here also clear in their opinion that the treaty warrants no such construction, but, on the contrary, plainly repels it. The fifth article provides that
In order to designate the boundary line with due precision upon authoritative maps and to establish upon the ground landmarks 'which shall show the limits of both Republics as described in the present article, the two Governments shall each appoint a commissioner and a surveyor, who, before the expiration of one year from the date of the exchange of ratifications of this treaty, shall meet at the port of San Diego and proceed to run and mark the said boundary in its whole course to the mouth of the Rio Bravo del Norte. They shall keep journals and make plans of their operations; and the result agreed upon by them shall be deemed a part of this treaty, and shall have the same force as if it were inserted therein.
By the terms used, those officers (the commissioners and surveyors on the part of the two Governments) are directly associated in all the duties assigned to them. They are separated in nothing. The object of their appointment is stated to be "to designate the boundary line with due precision upon authoritative maps and to establish upon the ground landmarks," etc. They are directed to meet, before the expiration of a year from the date of the exchange of ratifications, at the port of San Diego, and they are to proceed to run and mark the boundary in its whole course, etc. It is required that they "shall keep journals and make out plans of their operations, and the result agreed upon by them shall be deemed a part of the treaty," etc.
All the power and authority connected with the subject is by each Government delegated to its commissioner and surveyor jointly, by terms as clear and precise as language can supply, and the result, which settles the boundary, is to be agreed upon by them, nor can the committee recognize any rule of construction by which the foregoing can be treated as a delegation of one class of powers to the commissioners and another to the surveyors.
It may be safely conceded that in common understanding the appropriate function of a surveyor is to measure and designate lines on the earth's surface. But it will not seriously be contended that other duties than such appropriate functions may not be imposed upon him by the charter of his appointment, nor will it be contended that in determining the power and authority of the officers appointed under the treaty we are to be governed rather by the character of the office than by the terms that are used in prescribing its duties.
The Secretary says that in his "judgment the commissioners alone had the power to decide all the points of a 'political or diplomatic'
character, and after they had decided them, then the functions of the surveyors commenced, which were to measure and mark the lines on the surface of the earth." Against this judgment of the Secretary the committee deem it only necessary to oppose the language of the treaty. They do not find there any points, either diplomatic or political, left open for decision. Nor is anything submitted to these functionaries requiring for their adjustment either political or diplomatic power, unless it be held that power of this grade is necessary to enable a Government officer to run and mark a designated line by actual survey.
The general usage referred to by the Secretary can only be resorted to in the absence of an express rule or to solve a doubtful construction. But such alleged usage for the reasons assigned above, is, in the opinion of the committee, excluded by the language of the treaty; and if the Secretary be correctly informed, that "the commissioners have always held their meetings and conducted their discussions apart from the surveyors," the committee can only the more regret that the American commissioner was not corrected in this misconstruction before he committed the grave and unfortunate error on the initial point. The treaty, in the opinion of the committee, referred the interests of this Government, in everything pertaining to those boundaries, to the joint counsels of both of those officers, and it was their duty to have determined nothing without previous joint deliberation. The Secretary further says that he is "not aware that the surveyors ever claimed the right to participate with the commissioners in their deliberations, much less to exercise a supervising power over them," and yet, in the same report, he states that the American surveyor, who was not present when the initial point was agreed on by the two commissioners, when he did arrive, "declined to sign the agreement," and that "that fact was reported to the Department." The committee are at a loss how to reconcile this apparent conflict in the report, because it would seem to the committee, from the refusal of the surveyor to sanction what the commissioners had agreed on in his absence, that he did claim a negative on the act of his associate and actually exercised it. That this refusal was deemed of sufficient consequence to be reported forthwith to the Department and that the Department treated it as a matter requiring its prompt interference, in directing the surveyor, "by affixing his signature to the requisite papers, to remove the only obstacle which exists to the completion of this branch of the work, and the necessity of the signature of the surveyor seems further to have been manifested by the fact that after Mr. Gray had been recalled a like instruction to Major Emory, his successor, accompanied his commission as surveyor.
It is true the Secretary says that "the authentication of the papers by their (the surveyors) signatures was not to indicate their approbation of the principles settled by the commissioners, but to attest the genuineness of the documents which were to be filed among the archives of the two Governments." There is nothing in the treaty which prescribes the form in which the agreement of the respective functionaries is to be authenticated. All that is said in the treaty on this head (after prescribing the duties of the commissioner and surveyor in running and marking the boundaries) is that "the result agreed upon by them shall be deemed part of the treaty." Clearly, if the signature of the surveyor was only necessary to authenticate, or to establish by an attesting witness, the act of the two commissioners,
then the signature of Lieutenant Whipple (who had been appointed acting surveyor in the absence of Mr. Gray, and who, as the Secretary states, had signed the papers) was enough, the treaty furnishing no form.
The Secretary further says:
But if this view should be held to be incorrect, and that, under the true construction of the treaty the commissioners and the surveyors were invested with equal power in determining the political question involved, and that the four constituted a board authorized to decide all questions in issue in regard to the boundary, I think it will still be found that the instruction was properly given to Mr. Gray to sign the agreement. There is no principle of law better settled than that when a public authority is given to a joint commission to act in regard to any matter referred to them, the decision of the majority is binding on the whole; and in this case, three of the four having concurred in fixing the initial point as designated in the written convention, and signing the agreement to that effect, it was conclusive upon the two countries, and it was not competent for the fourth member of the commission, by withholding his signature, to invalidate the action of the board. In either aspect of the case I considered the instruction to the surveyor to sign the papers to be right and proper, and I felt no hesitation in giving it.
The committee can as little assent to this position of the report as to those already reviewed. The commission instituted by the treaty is certainly a "joint commission" in one sense, as the two Governments joined in creating it; but it by no means follows that these functionaries were to meet as arbitrators and to be governed by the principles of municipal law, which control such tribunals. The treaty is the act of the two Governments, and the duty developed upon the functionaries of the two Governments is simply to trace and mark a line agreed on by the treaty. No diplomatic or political power whatever is confided to them. Nothing is left to their discretion in agreeing what boundary shall be adopted; but they are simply to ascertain and mark that which the treaty adopted. Arbitration or submission to award is resorted to only between governments, as between individuals, to determine a matter of previous disagreement, and such submission in the case of States or governments is made only to equals—that is, to other sovereigns. But here there was no disagreement between Mexico and the United States. On the contrary, they had fully agreed, as evidenced by the treaty itself, and each Government sent its agents by treaty stipulation, solely to run and mark on the ground the boundary agreed on. These functionaries represented their respective Governments as mere agents, with prescribed powers. The treaty says of them: "The result agreed on by them shall be deemed a part of this treaty," obviously meaning, if the American functionaries agree with the Mexican functionaries on the line as found on the ground, then such agreement shall be taken as the agreement of the two Governments and become a part of the treaty.
The committee can never assent to a construction of the treaty which would delegate to the agent and representative of a foreign power authority to decide the rights of this country under a treaty contracted with such power. Such is not the mode in which governments act in their intercourse with each other, and this Government, it is confidently hoped, will not be the first to set such an example.
Upon the whole, the committee recommend the adoption of the following resolutions:
Resolved 1. That by the treaty between the United States and Mexico, concluded at Guadaloupe Hidalgo on the 2d day of February, in the year 1848, no other power or authority is given to the commissioners and surveyors whose appointment is
therein provided for than to determine, and by suitable landmarks establish, the boundaries between the two countries, as they are prescribed by said treaty; and that nothing in said treaty contained can be construed to authorize those officers, in any manner, to alter, vary, or modify the boundaries so provided.
Resolved 2. That such power and authority is conferred by the treaty on the commissioner and surveyor of each Government jointly, and that no separate power is conferred on either.
Resolved 3. That the act of John R. Bartlett, esq., the commissioner on the part of the United States, in disregarding the boundaries laid down on the map which is made a part of the treaty, and in establishing in lieu of one of said boundaries a parallel of latitude as determined by astronomical observations, is a departure from the treaty.
[See pp. 579, 580, 584, 599, 600.]
THIRTY-SIXTH CONGRESS, SECOND SESSION.
February 27, 1861.
On the message of the President relative to the boundaries between the United States and Great Britain under the treaty of June 15, 1846, Mr. Mason reported as follows:
Resolved, That, in the opinion of the Senate, the boundary in dispute between the Government of Great Britain and the United States should be referred to the arbitrament and final award of an umpire to be agreed on between the two Governments; that such umpire should, if practicable, determine said boundary as the same is prescribed in the treaty aforesaid; or, if that be not practicable, then that he be authorized to establish a boundary conforming as nearly as may be to that provided by said treaty; and that of the three powers referred to in the message of the President the Senate would indicate as such umpire the Republic of the Swiss Confederation.
(Ex. Jour., vol. 11, p. 282.)
[See as above.]
March 19, 1861.
On the message of the President as to settlement of the boundary under the treaty with Great Britain of June 15, 1846, Mr. Sumner reported as follows:
Resolved, That in pursuance of the message of the President, of the 16th instant, the Senate advises a reference of the existing dispute between the Government of the United States and the Government of Great Britain, concerning the boundary line which separates Vancouvers Island and the American continent, to the arbitration of a friendly power, with authority to determine the line according to the provisions of the treaty of the 15th of June, 1846, but without authority to establish any line but that provided for in the treaty; that of the three powers named by Great Britain the Senate advises that the Republic of Switzerland be chosen by the United States as arbiter.
(Ex. Jour., vol. 11, p. 314.)
S. Doc. 231, pt 5-39
[See pp., 615, 906.]
FORTY-FIFTH CONGRESS, SECOND SESSION.
May 28, 1878.
[Senate Report No. 439.]
Mr. Hamlin, from the Committee on Foreign Relations, submitted the following report:
The Committee on Foreign Relations, to which was referred the message of the President, together with the letter of the Secretary of State and the papers transmitted therewith, relating to the award of the Fisheries Commission, submit the following report with accompanying resolution and bill:
The commission which assembled at Halifax, in the Province of Nova Scotia, in 1877, met in pursuance of the treaty of Washington to determine a single question, and a question of importance to the United States, and the Government of Great Britain, and of special and significant weight to the Government and people of the Dominion of Canada. That question, to state it as plainly and tersely as possible, was to determine how much the privilege of the inshore fisheries of the Gulf of St. Lawrence was worth to the American fishermen, over and above what the American market for fish, free of duty or tax, was worth to the Canadian fishermen. It was simply a question of free fishing in all Canadian waters to the American, and of free fish in all American markets to the Canadian, with the right of free fishing to the Canadian in American inshore waters, as specified in the treaty, both for the term of twelve years; and the simple and single point at issue, was how much is the privilege accorded to the American worth above that which is granted to the Canadian?
The determination of this question was left under the wise and beneficent provisions of the treaty of Washington to a commission of three persons: Sir Alexander T. Galt, named by Her Britannic Majesty; Hon. Ensign H. Kellogg, named by the President of the United States, and Mr. Maurice Delfosse, envoy extraordinary and minister plenipotentiary from Belgium to the United States, named by the Austrian ambassador at London, in pursuance of the terms of the treaty. After hearing all the evidence and pleadings in the case, two of the commissioners gave an award against the United States of $5,500,000, nearly a half million dollars per annum for the twelve years covered by the treaty. Ordinarily an award made by a commission of this character would be paid with the utmost promptness, and without the slightest criticism. The principal of international arbitration so successfully inaugurated under the provisions of the treaty of Washington is of such vast importance to the peace and prosperity of the nations, and the consequent advancement of civilization, that every proper effort, and indeed every reasonable and honorable sacrifice necessary to secure and maintain it should be freely and gladly made. If comments, therefore, become necessary in regard to the award of the Halifax commission, they will be indulged, not as of interest simply to the American side of the question, but of equal interest at least to the British side of the question. In a just and proper disposition of this question, the interests of the two nations do not and can not differ. Boards of arbitration, like judicial courts, are restricted in their judgments and awards by the jurisdiction that is conferred upon them.