Attention was called by Mr. Hamlin to the fact that the award was made only by two Commissioners, the third dissenting. In the two other Commissions organized under the Treaty of Washington it was specifically provided that a majority of the Commissioners should decide, but in constituting the Fishery Commission no such provision was made. What was the fair inference? Redmond on arbitration and awards, Francis Russell, and other eminent English authorities, lay down the doctrine that "on a reference to several arbitrators, with no provision that less than all shall make an award, each must act, and all must act together; and every stage of the proceedings must be in the presence of all, and the award must be signed by all at the same time." The London Times, July 6, 1877, just before the Commission was organized at Halifax, had asserted that "on every point that comes before 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." And Mr. Blake, the Minister of Justice for Canada, had declared in 1875 that "the amount of compensation we shall receive must be the amount unanimously agreed upon by the Commissioners."
Mr. Hamlin, representing the Committee on Foreign Relations, was careful not to put the United States in the attitude of repudiating the award. "However much," said the report, "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." It was aptly added that "the intelligence and virtue of British statesmen cannot fail to suggest that arbitration can only be retained as a fixed mode of adjusting international disputes by demonstrating its efficiency as a methods of securing mutual justice and thus assuring that mutual consent without which award and verdicts are powerful only for mischief."
To the resolution approving the report made by Mr. Hamlin, Mr. Edmunds offered an amendment, declaring that "Articles XVIII. and XXI. of the treaty between the United States and Great Britain, concluded on the 8th of May, 1871 (remitting the duties on fish and fish-oil), ought to be terminated at the earliest period consistent with the provisions of Article XXXIII. of the same treaty (providing that the remission should be for ten years)." A brief debate ensued and the resolution, with Mr. Edmund's amendment, was adopted by a large majority. The bill reported by the committee, appropriating the five and a half million dollars, was then passed without objection. Congress had now done with the subject, and its final disposition was left to the Executive Department of the Government.(5)
Responding to the judgment of Congress, Mr. Evarts, then Secretary of State, presented the whole argument against the award in a dispatch of September 27, 1878. He was compelled to believe from the magnitude of the award, that considerations foreign to the questions submitted had been brought before the Arbitration. He called the attention of Lord Salisbury, who had become Foreign Secretary in the second Disraeli Cabinet, that five fishing-seasons under the treaty had elapsed before the Halifax Commission was organized, and that therefore we had actual statistics showing the value of the privilege conceded to the United States, instead of the conjectural estimates which had been used when the treaty was made. By these actual and careful statistics, it had been found that from the inshore fishing American fishermen had in the five seasons secured 125,961 barrels of mackerel,—worth when packed and ready for exportation $3.75 per barrel, and in the aggregate $472,353. But in this price, as Mr. Evarts explained, "are included the barrel, the salt, the expense of catching, curing and packing, which must all be deducted before the profit is realized. Upon the evidence, a dollar a barrel would be an excessive estimate of net profit, and this would give to our fishermen, for the five seasons of the fishery privilege, but $25,000 a year, or for the whole twelve years but $300,000."
Not content to rest his argument upon this statement alone, Mr. Evarts called Lord Salisbury's attention to the fact that if the mackerel be estimated at the most extravagant price of $10 per barrel, and half the sum estimated as net profit, the total value of the fishery would be but $125,000 per annum, or $1,500,000 for the twelve years. The only problem, therefore, left for the Government of the United States to consider, was whether in exchange for the $5,500,000 awarded by Mr. Delfosse, and the $4,200,000 of duties remitted to Canada on fish and fish-oil, we were actually to receive a total of $300,000 or $1,500,000? In other words was the loss to the United States by the transaction to be $9,400,000 or $8,200,000?
Lord Salisbury, in his reply, quoted eminent American publicists to show that a majority of the Commission was authorized to make an award. He maintained that the rule in international arbitrations empowered the majority of the arbitrators to decide; but if that be a generally recognized rule, his Lordship should have explained why in the case of the Geneva and Washington arbitrations, (provided for in the same treaty with the Halifax arbitration), the right of the majority to decide was specifically provided for, and was regarded in at least one case as a concession by the High Commissioners of Great Britain. His Lordship declined to follow Mr. Evarts "into the details of his argument." He maintained that "these very matters were examined at great length and with conscientious minuteness by the Commission whose award is under discussion." He admitted, with diplomatic courtesy, that "Mr. Evarts' reasoning is powerful," but still in his judgment, "capable of refutation." He did not, however, attempt to refute it, but based his case simply on the ground that the award gave the $5,500,000 to England. In all frankness his Lordship should have said that Mr. Delfosse, in his grace and benevolence, gave the large sum to England.
Secretary Evarts, with great propriety, declined to press the points submitted in his dispatch. His only design was to call the attention of the British Government to the extraordinary facts, and leave to the determination of that Government whether any thing should be done to mitigate the glaring and now demonstrated injustice of the award. "The Government of the United States," said Mr. Evarts in closing his dispatch, "will not attempt to press its own interpretation of the treaty against the deliberate interpretation of her Majesty's Government to the contrary." He made no rejoinder to Lord Salisbury, and paid on the day it was due—one year from the date of award—the amount adjudged to Great Britain. Every American felt that under such circumstances it was better to pay than to be paid the five and a half million dollars.
It is not difficult to understand how Mr. Delfosse was brought to such an extraordinary conclusion, and there has been no disposition in the United States to impute his action to improper motives. The wrong was done when he was selected as third Commissioner, and the tenacity with which he was urged will always require explanation from the British Government. Mr. Delfosse had spent his life in the Diplomatic service, was not in any sense a man of affairs, and was profoundly ignorant of the fishery question. From the diplomatic point of view he could not understand that the Dominion of Canada should open her inshore fisheries to such a power as the United States without some consideration beyond that of mere commercial demand. Measuring in his own mind the value of such a right on the restricted coast of his own country, it was natural that he should multiply it somewhat in the proportion of the vastly extended coast of British America, now thrown open to the United States. He was further influenced by the claim shrewdly put forward by the British agent and British attorneys that the inshore fisheries were worth $12,000,000 to the United States for the period of the treaty, and the Newfoundland fisheries $2,280,000 in addition. It is difficult to speak of these pretensions with respect, or to treat them as honestly put forward by men to whom all the facts were familiar.
Above all, Mr. Delfosse knew that the Belgian sovereign, whose favor was his own fortune, would earnestly desire a triumph for the British cause. Both sides made strong representations, and presented statistics and tabular statements and elaborate comparisons, which he did not analyze, and perhaps did not understand. England, he knew, had been mulcted in fifteen and a half millions in the Geneva award, and the San Juan controversy had been decided against her by the Emperor of Germany. With the connections and surroundings of Mr. Delfosse he would have been more than human if he had not desired England to triumph in at least one of the questions submitted to arbitration under the Treaty of Washington. But while these circumstances relieve Mr. Delfosse from any imputation upon his personal or official honor, they only render more prominent and more offensive the singular pertinacity with which the British Government insisted upon his appointment as one of the Commissioners in an arbitration that was originally designed to be impartial.
[(1) The third article of the treaty of 1782 is as follows: "It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulph of St. Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish; and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use (but not to dry or cure the same on that island); and also on the coasts, bays, and creeks of all other of his Britannic Majesty's dominions in America and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground." Precisely the same concession is embodied in the treaty of 1783.]