Arbitration as Question of Compensation. a Provisions for It being asserted by Great Britain, but not to admitted by the United States, that the priv ileges accorded to the citizens of the United States under Article XVIII. of the treaty were of greater value than those accorded to British subjects under Articles XIX. and XXI., it was provided by Article XXII. that commissioners should 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." It was agreed that any sum of money which the commissioners might so award should be paid by the United States in a gross sum, within twelve months after such award should have been given. For the purpose of carrying into effect the foregoing agreement to arbitrate, provision was made (Article XXIII.) for the appointment of three commissioners, one to 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; or, in case they should not have named him within a period of three months after the article took effect, by the representative at London of His Majesty the Emperor of Austria and King of Hungary. The commissioners were to meet in Halifax, Nova Scotia, at the earliest convenient period after they should have been named, and, before proceeding to any business, to make and subscribe a solemn declaration that they would impartially and carefully examine and decide the matters referred to them to the best of their judgment, and according to justice and equity, such declaration to be entered on the record of their proceedings. Each government was authorized to name one person to attend the commission as its agent, to represent it generally in all matters connected with the commission; and the commission was authorized to employ a secretary and any other necessary officer or officers to assist it in the transaction of its business. Each of the high contracting parties was to pay its own commissioner and agent or counsel, and all other expenses were to be defrayed by the two governments in equal moieties. 5627-46 sioners. The commissioners were invested with power Powers of Commis- to determine the order of their procedure. They were required to receive such oral or written testimony as either government might present; and if either party offered oral testimony, the other had the right of cross-examination, under such rules as the commissioners should prescribe. If, in the case submitted to the commissioners, either party specified or alluded to any report or document in its own exclusive possession, without annexing a copy, such party was bound, if the other saw fit to apply for it, to furnish the latter with a copy; and either party was authorized to call upon the other, through the commissioners, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the commissioners might require. Duration of Commission. It was further provided that the case on either side should be closed within a period of six months from the date of the organization of the commission, and that the commissioners should be requested to give their award as soon as possible thereafter. But it was agreed that the period of six months, for the closing of the case on either side, might be extended for a period of three months in case of a vacancy occurring among the commissioners. By Article XXXII. of the treaty it was Newfoundland. agreed that the stipulations of Articles XVIII. and XXV., inclusive, should extend to the colony of Newfoundland, so far as they were applicable; but that, if the Imperial Parliament, the legislature of Newfoundland, or the Congress of the United States should not embrace that colony in the laws passed to give those articles effect, then the article (XXXII.) should be of no effect. Provisional Pro posals. On May 8, 1871, the day on which the treaty was signed, Mr. Fish, in the name of the President, proposed to Sir Edward Thornton that, pending the adoption of the legislation necessary to give the fisheries articles effect, Her Majesty's government should be prepared, in the event of the ratification of the treaty, to make on their own behalf, and to urge the governments of the Dominion of Canada, Prince Edward Island, and Newfoundland to make such relaxations and regulations as might be neces sary to admit American fishermen to the liberty which they would enjoy under the treaty, the Government of the United States to admit British subjects to the exercise of the right of fishing in the American waters specified in the treaty, and to recommend that Congress authorize the refunding of duties collected after July 1, 1871, on fish and fish oil the produce of Canada and Prince Edward Island, if a similar arrangement was made with respect to the admission into the British possessions of fish and fish oil being the produce of the United States.1 Sir Edward Thornton, on behalf of his government, accepted this proposal, saying, however, that the ultimate decision of the question of immediately granting fishing rights in the British waters must rest with the colonial governments, just as the refund of duties paid on fish in the United States after the 1st of July was contingent on the action of Congress;2 and he subsequently stated that, though Her Majesty's gov ernment continued to hold that, under the convention of 1818, United States fishermen were prohibited from frequenting colonial ports and harbors for any purposes but shelter, repairing damages, purchasing wood and obtaining water, the prohibition would not be enforced during the pending season, and that American fishermen would be allowed to enter Canadian ports for the purposes of trade and of transshipping fish and procuring supplies, as well as to fish outside of the threemile limit in bays more than six miles wide at the mouth.3 On July 25, 1871, the government of Prince Edward Island decided not to enforce the fishery laws during the pending season and while the treaty was under consideration by the colonial legislature. The government of the Dominion, however, did not assent to Mr. Fish's proposal, and the proffered arrangement consequently was not carried into effect." Adoption of Legislation. For a time the question raised as to the jurisdiction of the Geneva Tribunal to entertain the indirect claims presented by the United States rendered it doubtful whether the Treaty of Washington itself would ever go into operation. This obstacle, For. Rel. 1871, 485. *For. Rel. 1871, 486. 3 Sir Edward Thornton to Mr. Fish, For. Rel. 1871, 490. 4 For. Rel. 1871, 492. "For. Rel. 1872, 215, 217, 219–222. however, having been removed, legislation was in due time. adopted to put all the provisions of the treaty in force. Acts in relation to the fishery articles were passed by the Imperial Parliament and by Canada and Prince Edward Island.' These acts were to take effect at a time to be appointed by proclamation, in order that the beginning of their operation might be simultaneous with that of the legislation to be enacted by the United States. The corresponding legislation on the part of the United States was adopted on March 1, 1873, to take effect on the 1st of the following July, the beginning of the new fiscal year. On the 3d of March 1873 the committee of the privy council of Canada recommended that, pending the coming into force of the United States act, American vessels should not be prevented from fishing within the three-mile limit. On the 7th of June 1873 Mr. Fish and Sir Edward Thornton signed at Washington a protocol in which, after reciting the reciprocal legislation on the subject, they declared that the fishery articles would take effect on the 1st of the following July. The colony of Newfoundland, having passed the necessary laws, was admitted to the benefits of the treaty and the act of Congress on the 1st of June 1874. The appointment of the mixed commission Reciprocity Negotia- under Article XXIII. of the treaty was posttions. poned not only by the delay in the adoption of the legislation required to give the fishery articles effect, but also by the consideration of a draft of a treaty for the reciprocal regulation of trade between the United States and Canada, with provisions for the enlargement of the Canadian canals and for their use by United States vessels on terms of equality with British vessels. By the fourteenth article of this project it was provided that when the ratifications of the new treaty should have been exchanged and the necessary legislation adopted to give it effect, the articles of the Treaty of Washington in relation to the Halifax commission should become For. Rel. 1873, I. 402, 403, 407. 217 Stats. at L. 482. 3 For. Rel. 1873, I. 418, 419. 4 Treaties and Conventions, 1776-1887, 198. Treaties and Conventions, 1776-1887, 499; For. Rel. 1873, I. 419, 427, 429; 1874, 554, 557, 558, 559. All of Labrador, outside of the province of Quebec, came into the arrangement as part of the colony of Newfoundland. For. Rel. 1874, 567, 572, 573; 1875, I. 613. null and void. President Grant communicated this project to the Senate on the 18th of June 1874, and although it was submitted as an unsigned draft, in order to ascertain whether the Senate would advise and consent to its conclusion either in the form in which it stood and in which it was proposed by the British plenipotentiaries, or in some other and more acceptable form, he declared that it had "many features to commend it to our favorable consideration." The Senate, however, removed the injunction of secrecy from the project, and postponed action on it till the next session of Congress, when, on February 3, 1875, it resolved that it was not deemed expedient to recommend the negotiation of the treaty.' Halifax Commis sioners. The two governments were thus left to execute Appointment of the the Treaty of Washington by the appointment of commissioners. For this purpose no time was fixed by the treaty, except as to the third commissioner, who, unless he was conjointly appointed by the President of the United States and Her Britannic Majesty within a period of three months after the fishery articles took effect, was to be named by the diplomatic representative of AustriaHungary in London. As the articles took effect on July 1, 1873, the period of three months expired on the last day of September in that year. Before the 1st of July Mr. Fish informed Sir Edward Thornton that if Her Majesty's government would suggest some names the Government of the United States would consider them with a view to reaching an agree ment; but as no effective steps in that direction were taken, Mr. Davis, then acting Secretary of State, on the 7th of July addressed to Sir Edward a formal note, in which he proposed the names of the ministers of Mexico, Russia, Brazil, Spain, France, and The Netherlands, at Washington, as a list from which to choose a third commissioner by conjoint action. In a conversation with Mr. Fish at Washington on the 5th of August, and in a letter of the 19th of the same month, Sir Edward Thornton asked that the United States would consent to the appointment of Mr. Maurice Delfosse, the Belgian minister at Washington. Mr. Fish, "while entertaining a high personal regard for the character and abilities of the Belgian minister," objected to his selection on the ground that "there were reasons in the For. Rel. 1874, 533, 564; 1875, I. 653. 2 Sen. Ex. Doc. 100, 45 Cong. 2 sess. |