If an international board of arbitration transcends its jurisdiction, and proceeds, in any respect, ultra vires, there is, of course, no appeal to interpose as a corrective, except to that of the justice and honor of the nations interested. However much, then, we may regard the award made at Halifax as excessively exorbitant, and possibly beyond the legal and proper power of those making it, your committee would not recommend that the Government of the United States disregard it, if the Government of Her Britannic Majesty, after a full review of all the facts and circumstances of the case, shall conclude and declare the award to be lawfully and honorably due. If the unfailing power of self-interest may be feared as a force tending to obscure the view of the British Government as to the essential justice of the opposing side, we must remember that in the other direction no nation is more vitally interested than Great Britain in upholding and maintaining the principle and practice of international arbitration; and the intelligence and virtue of the British statesman can not fail to suggest that arbitration can only be retained as a fixed mode of adjusting international disputes by demonstrating its efficiency as a method of securing mutual justice, and thus assuring that mutual content, without which awards and verdicts are powerful only for mischief. In the spirit of these suggestions your committee beg leave to call attention to several features of the award.

The first point claiming attention is that the award was made by only two of the commissioners, Messrs. Galt and Delfosse, the American commissioner, Mr. Kellogg, entering his emphatic dissent from the exercise of exclusive and plenary power on the part of the other two commissioners. Mr. Kellogg was doubless prompted to this course by the fact that the treaty of Washington, in providing arbitrations, one at Geneva, one at Washington, and another at Halifax, specially declared, in the case of the Geneva tribunal and the Washington commission, that a majority should decide. In establishing the Halifax commission no such authority was given to a mere majority of the commission, and no provision was inserted to except the proceedings from the law of arbitration that commonly prevails in England and America; but, in the judgment of your committee, it would not be wise or expedient for the United States to refuse to pay the award on this ground if the British Government, after the subject shall have been brought to its attention, claim that, in their judgment, the award is made in accordance with the terms of the treaty and in conformity with sound principles of law.

The second point of the award to which your committee invite attention is its exorbitant amount, not warranted by any estimate placed upon the value of the inshore fisheries or any negotiations between the two Governments. An exhaustive examination of the relative values of free fishing for Americans and free fish markets for Canadians was made by the agents of the two Governments, respectively, anterior to the reciprocity treaty of 1854. It was then virtually agreed to offset the one against the other, and for the period of twelve years from 1854 to 1866 the mutual interchange of privileges was enjoyed with so great and decided disadvantage to the American fishermen that their demand for the termination and against its renewal was absolutely unanimous; and, so far as the United States was officially advised of the wishes of the Canadians, equal unanimity on their part was found in favor of continuing the reciprocity treaty of free fisheries and free

[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.

If an international board of arbitration transcends its jurisdiction, and proceeds, in any respect, ultra vires, there is, of course, no appeal to interpose as a corrective, except to that of the justice and honor of the nations interested. However much, then, we may regard the award made at Halifax as excessively exorbitant, and possibly beyond the legal and proper power of those making it, your committee would not recommend that the Government of the United States disregard it, if the Government of Her Britannic Majesty, after a full review of all the facts and circumstances of the case, shall conclude and declare the award to be lawfully and honorably due. If the unfailing power of self-interest may be feared as a force tending to obscure the view of the British Government as to the essential justice of the opposing side, we must remember that in the other direction no nation is more vitally interested than Great Britain in upholding and maintaining the principle and practice of international arbitration; and the intelligence and virtue of the British statesman can not fail to suggest that arbitration can only be retained as a fixed mode of adjusting international disputes by demonstrating its efficiency as a method of securing mutual justice, and thus assuring that mutual content, without which awards and verdicts are powerful only for mischief. In the spirit of these suggestions your committee beg leave to call attention to several features of the award.

The first point claiming attention is that the award was made by only two of the commissioners, Messrs. Galt and Delfosse, the American commissioner, Mr. Kellogg, entering his emphatic dissent from the exercise of exclusive and plenary power on the part of the other two commissioners. Mr. Kellogg was doubless prompted to this course by the fact that the treaty of Washington, in providing arbitrations, one at Geneva, one at Washington, and another at Halifax, specially declared, in the case of the Geneva tribunal and the Washington commission, that a majority should decide. In establishing the Halifax commission no such authority was given to a mere majority of the commission, and no provision was inserted to except the proceedings from the law of arbitration that commonly prevails in England and America; but, in the judgment of your committee, it would not be wise or expedient for the United States to refuse to pay the award on this ground if the British Government, after the subject shall have been brought to its attention, claim that, in their judgment, the award is made in accordance with the terms of the treaty and in conformity with sound principles of law.

The second point of the award to which your committee invite attention is its exorbitant amount, not warranted by any estimate placed upon the value of the inshore fisheries or any negotiations between the two Governments. An exhaustive examination of the relative values of free fishing for Americans and free fish markets for Canadians was made by the agents of the two Governments, respectively, anterior to the reciprocity treaty of 1854. It was then virtually agreed to offset the one against the other, and for the period of twelve years from 1854 to 1866 the mutual interchange of privileges was enjoyed with so great and decided disadvantage to the American fishermen that their demand for the termination and against its renewal was absolutely unanimous; and, so far as the United States was officially advised of the wishes of the Canadians, equal unanimity on their part was found in favor of continuing the reciprocity treaty of free fisheries and free

markets. It is true that the provisions relating to the fisheries were coupled with reciprocity in other branches of commerce, but your committee make the statement with special and separate reference to the fishing interests of the two countries. The opinion governing Congress comprehended full knowledge of the fishing interests and of the unanimous desire of the American fishermen to terminate the treaty and a like desire of the Canadian fishermen to continue it. The suggestion at that time that the United States should continue to admit Canadian fish free of duty and also pay half a million dollars annually to secure to our fishermen the privilege of catching mackerel in the inshore waters of Canada would have been regarded as so unreasonable that it would neither have been proposed nor entertained. And it is but just to say, and to say it with emphasis, that during the twenty-four years since the reciprocity treaty was negotiated the fisheries have not improved in their resources, whereas the markets in the United States have greatly increased in their value-have nearly doubled. So that free markets to the Canadians in exchange for free fishing to the Americans present to-day far greater advantages to the Canadians than they did when they were so ready and so eager to continue the arrangement of 1854.

And it is worthy of special mention that since the treaty of Washington, negotiated in 1871, the Government of Great Britain had so little confidence that anything could be awarded in their favor that they were not anxious to have a meeting of the commission and interposed a proposition for another treaty of reciprocity which would entirely dispense with the assembling of the Halifax commission. There is good ground, indeed, for believing that the provision in reference to the fisheries in the treaty of Washington was desired by the British Government as an entering wedge for fresh negotiations in regard to a new treaty of reciprocity. To this end an accomplished agent was sent to Washington in 1873 by the British Government, and his labors were aided and supported by the presence of a distinguished Canadian statesman sent hither by the Dominion of Canada. And the treaty of reciprocity which these British agents finally agreed upon with the State Department, and which was submitted to the Senate by the President of the United States and rejected by the Senate, contained again the provision of the former reciprocity treaty of free fishing and free markets, the one being tendered by the British agents as a fair and full equivalent for the other. The suggestion of half a million dollars per annum to be paid by our Government for the superior privilege accorded to American fishermen would at that time (1874) have been regarded as wild and extraordinary, as it would also have been at any time since the reciprocity treaty was negotiated, twenty years ago.

The returns of customs receipts for four full years-1873 to 1877since the treaty for the free importation of fish from Canada has been in force shows that our Government has remitted duties to the Canadian fishermen of nearly a million and a half dollars, or nearly $350,000 per annum. Under the Halifax award our Government is now called upon to pay nearly a half million dollars more per annum for these years, making an aggregate of remission and payment of more than $800,000 per annum, in gold coin, for the privilege of inshore fisheries, the enjoyment of which does not, according to the most reliable statistics, add $25,000 per annum to the profits of American fishIn no view can it be double that sum. Were the treaty of

ermen.

free fishing and free markets perpetual in its terms, we might find some elements of content, even in the exorbitant award of $5,500,000, in the fact that it would remove all possible danger of contention or conflict with a friendly power in a field which has hitherto been involved in difficulties and trouble. But it is not so. This large sum is in consideration of having the fishery question adjusted for the brief space named of twelve years, nearly one-half of which has expired.

But further, and in addition to the large sum which has been named which the United States will be compelled to pay, there is another and important fact to be remembered as bearing directly upon a just decision of the pending question. By the nineteenth article of the treaty of Washington the right of the inshore fisheries in the waters of the United States north of the thirty-ninth parallel of latitude is secured to the Canadian fishermen in the same manner substantially as is the right to American fishermen in the inshore fisheries of Canadian waters.

But startling as are these figures, they do not present the whole case, for it must be remembered, as before stated, that under the treaty the United States remits duties on Canadian fish each year of nearly $350,000, aggregating for the twelve years (allowing a slight increase for each year) the large amount of $4,500,000. This sum, which is actually withheld from the Treasury of the United States, and therefore in effect taken from it by the treaty, added to the amount of $5,500,000, makes a total of $10,000,000 which we are called upon to pay for the privilege to American fishermen, making a profit not probably exceeding $25,000 per annum, and can not possibly equal twice that amount, for catching mackerel within the 3-mile line of the shore of the Canadian waters named in the treaty. Thus it will be seen that the Government of the United States in effect pays, reckoning interest as low as 4 per cent, an annual sum of $400,000 for the inconsiderable privilege conferred upon American fishermen by the treaty of Washington. Reckoning the interest at 5 per cent, the annual payment would be just $500,000 for that which can not be in value $50,000. The policy of protecting and encouraging our fisheries was so highly regarded by the founders of our Government, and by those who administered it for seventy years, that large bounties were paid to develop and increase the trade and occupation. The system of our bounties was abandoned some years since, and our fishermen were left to their own energy and enterprise. By the operation of the Washington treaty in remitting duties, and the Halifax commission awarding an enormous sum against us, the United States is called upon to pay annually a larger sum for the benefit of Canadian fishermen than it ever appropriated as bounties to American fishermen. It may be that American fishermen can prosper without any direct aid from their Government, but they can hardly prosper when the United States is thus made to aid their strongest competitors.

When the British members of the joint high commission of 1871 pressed the fishery question for settlement, the best offer they could get from the American members of the commission was that the United States would agree to pay $1,000,000 for the full and absolute right in common to all the Canadian fisheries, in perpetuity. The American commissioners refused to add the admission of Canadian fish free of duty into our markets; and the British commissioners