PUBLIC RECORD OFFICE
Reference :-
། 1 :「། ། CO.
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
themselves to us with regard to the arguments which might be used in support of the ** case"
of Her Majesty's Government, or to the general conduct of the proceedings before the Commission.
In obedience to your Lordship's commands we have the honour to
Report
That your Lordship desires our opinion upon five points connected with the Fishery
Commission under the Treaty of Washington of May 1871.
First. Whether the "
辨 case prepared on behalf of Her Majesty's Government is
drawn up in such a manner as to meet with the requirements of the case.
In our opinion the case is ably and carefully drawn, and is a fair and full statement of the grounds upon which a claim for compensation is based, and a right and proper estimate of the amount of compensation in respect of the Dominion fisheries and the Newfoundland fisheries. We suggest, however, the omission of the passage beginning with the words “in addition" on page 34 and ending with the word " Treaty page 36, as suggesting topics which can hardly be considered appropriate upon a question of pecuniary compensation.
on
This opinion we come to, considering that an opportunity will be offered for meeting and answering the "case" prepared on behalf of the United States, and that Her Majesty's Government is not required to set out in the first instance those matters which may evidently be raised on the part of the United States.
Thus in pages 4 and 5 of the "case" the 1st Article of the Convention of 1818 is set out in full, but in the argument upon that Article no notice is taken of the fact that whilst that Article gave no right or privileges at all to Her Majesty's subjects, the 19th and 21st Articles of the Treaty of Washington give British subjects certain rights on the shore of, and the admission of certain fish and fish oil free of duty into, the United States.
"
case
>>
The rights claimed by the French to fish on the West Coast of Newfoundland are not in any way noticed in the second part of the
relating to Newfoundland, and yet it is obvious that if the French claims are good for anything, the benefit to and the rights of the United States fishermen on the West Coast must be to some extent lessened.
The amount of compensation claimed both for the Dominion fiskeries and the Newfoundland fisheries seemed to us, when we first read the case, very large, indeed, beyond all proportion, either to any loss which may be sustained by British subjects, or to any benefit which may be conferred on United States citizens.
And this view, which we were inclined to take, was confirmed by the speeches at Ottawa in May 1872 (page 211 of the correspondence), and in April 1873 (page 216 of correspondence).
We have, however, again carefully considered the calculations upon which the amounts of compensation are respectively based, and, so far as we are able to form an opinion, we now think the figures justify the result reached. Yet the speeches above referred to may place great difficulties in the way of Her Majesty's agent, who should be able to lay before the Commissioners the clearest and most convincing evidence of the real relative values accorded to either party under Articles 18, 19, and 21 of the Treaty of Washington.
Secondly. The construction of Article 24 of the Treaty as regards the unanimity of the Commissioners in giving their award.
Articles 2, 10, and 13 of the Treaty expressly state that a majority of the arbitrators or assessors shall be sufficient, and the silence, accidental or designed, in Article 24 upon the decision of the majority leads, in our opinion, directly to the conclusion that the unanimity of the Commissioners is necessary to the giving their award.
Thirdly. We are of opinion that in the event of the Headland question being intro- duced into the discussion from the United States side, Her Majesty's agent should be prepared to adopt the strongest ground, and support it by the fullest reasons which the subject affords.
Fourthly. The question of the valuation of the Customs remission on either side as an off-set to the value of the fisheries cannot, in our opinion, be shut out from con- sideration if introduced from the United States, since it appears that a large market will by such remission be in the United States opened to British subjects, which is a clear advantage, and may, therefore, fairly be put forward on behalf of the United States.
44
3
But as the case has been framed, and, we think, rightly, upon the principle of non-committal," the question should not be raised on behalf of Her Majesty's Government, though Her Majesty's agent should be prepared to give evidence and bring forward arguments in support of the advantages to the citizens of the United States by the remission of the duties.
We have on this head carefully considered the letter from Mr. Ford (No. 6, Con- fidential, page 192) and the two enclosures, and we entirely agree with the opinions stated in those documents.
Further, we think that the offers made by the United States Commissioners during the negotiations which preceded the conclusion of the Treaty of Washington, if admissible in evidence, which we doubt, cannot properly or prudently be used as evidence of the value placed by the United States themselves on the privilege of admission to the British North American fisheries, because among those offers we find one was to purchase in perpetuity for $1,000,000. ☎r 400,000l. the rights for which during 12 years only Her Majesty's Government in the case now claim $22,880,000.
Lastly. In our opinion the strict construction of Article 22 requires the Commis- sioners to compare and assess the relative values only of those privileges which are accorded to the citizens of the United States under Article 18 compared with the privileges accorded to British subjects under Articles 19 and 21.
Article 21 in words grants apparently equal or equivalent privileges to the two countries; but it may well be that owing to the small value of the United States fisheries as limited by the Convention of 1818, and the distance of those fisheries from a market in the Dominion or in Newfoundland, and from other circumstances, that the framers of the Treaty left out in Article 22 as valueless the privilege of the admission into the Dominion and Newfoundland, free of duty, of fish oil and certain fish, the produce of the United States fisheries.
However, the words of Article 22 confine the Commissioners to assess merely the value of the privileges accorded to the citizens of the United States under Article 18, and do not permit any set-off by reason of the value of the privilege of admission, free of duty, of fish oil and certain fish into the Dominion of Canada.
The Earl of Derby,
&c.
&c.
We have, &c.,
(Signed)
JOHN HOLKER. HARDINGE GIFFARD.
J. PARKER DEANE.