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political relations between his government and that of Great Britain why the representative of the former could not be regarded as an independent and indifferent arbitrator on questions between the government of Her Majesty and the United States." Mr. Fish also adverted to the fact that, when the Joint High Commission was in session in Washington, the Earl De Grey, during the discussion of a proposed reference to one or more heads of foreign states, after mentioning several, said he would not name Belgium, because of the supposed relations of that power to Great Britain, which might make it unacceptable to the United States as a referee. On the 26th of August Sir Edward Thornton made a formal reply to the note of Mr. Davis of the 7th of July, which he had transmitted to London. In this reply Sir Edward said that, as the matters which were to be considered by the commission deeply concerned the people of Canada, it was necessary to consult the government of the Dominion on a point of so much importance as the appointment of the third commissioner. This had caused some delay, but he had received a communication from the Governor-General of Canada, to the effect that the government of the Dominion strongly objected to the appointment of any of the foreign ministers at Washington as third commissioner, and preferred the alternative of a nomination by the Austrian ambassador at London. Mr. Fish protested against this announcement as an abandonment of the effort to select a third commissioner by conjoint action; but the three months soon passed away, without a selection having been made, and Sir Edward Thornton stated that, the two governments having failed to agree, the law officers of the Crown were of opinion that the treaty peremptorily required the nomination to be made in the alternative mode. Here, owing to the pendency of the reciprocity proposal, the correspondence in relation to the appointment of the commission was suspended till April 12, 1875, when, the Senate having advised against the conclusion of a new treaty, Sir Edward Thornton announced that Her Majesty's government deemed it desirable that the arbitration should proceed, and he accordingly proposed that steps should at once be taken for the constitution of a commission, and suggested that an identic note be ad

Mr. Fish to Sir Edward Thornton, August 21, 1873, Sen. Ex. Doc. 44, 45 Cong. 2 sess.

and Agent.

dressed to the Austrian Government by the representatives of the United States and Great Britain at Vienna, requesting that the Austrian ambassador be authorized to proceed with the nomination of the third commissioner. By a further note of the 19th of July 1875 Sir Edward conBritish Commissioner veyed information of the appointment of Sir Alexander T. Galt as British commissioner, and of Mr. Francis Clare Ford as British agent, and asked to be informed of the names of the persons who were to act in similar capacities on the part of the United States. To this request Mr. Fish was at the time unable formally to respond. The position of commissioner on the part of the United States was at first offered to and accepted by Mr. John H. Clifford, of Massachusetts, but, owing to the delay caused by the reciprocity negotiations, he died without having entered upon the discharge of its duties. On May 8, 1876, Mr. Fish announced the appointment of Mr. Ensign H. Kellogg and Mr. Dwight Foster, both of Massachusetts, as commissioner and agent, respectively, on the part of the United States. The third commissioner yet remained to be selected. On the 1st of February 1877, however, Mr. Fish informed Sir Edward Thornton that, if his government should propose the appointment of Mr. Delfosse, the United States would not object to the selection. Sir Edward thereupon communicated with his government, and also, with the assent of Mr. Fish, called upon Mr. Delfosse, and ascertained that he would serve; and it was agreed that a suggestion should be conveyed to the Austrian ambassador at London, with whom the appointment rested, that the nomination of Mr. Delfosse would be agreeable to both parties. This plan was duly executed, and on the 2d of Third Commissioner. March 1877 the Austrian ambassador

American Commissioner and Agent.

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pointed Mr. Delfosse as third commissioner. Mr. Fish on the same day extended to Mr. Delfosse, in an unofficial note, his "warmest congratulations" on the appointment.1

Meeting of the
Commission.

The first meeting of the commission was held in the legislative council chamber at Halifax on the 15th of June 1877. Both the commissioners were present, as well as the agents of the two govern

1 Sen. Ex. Doc. 100, 45 Cong. 2 sess.

President-Secretary.

ments. On motion of Mr. Kellogg, Mr. Delfosse was chosen to preside over the labors of the commission. He accepted the position with due acknowledgments, and named J. H. G. Bergne, of the foreign office in London, as secretary to the commission. The commissioners then made and subscribed, in duplicate, a solemn declaration impartially and carefully to examine and decide the matters referred to them to the best of their judgment and according to justice and equity. The agents of the two governments then produced their commissions, which were found to be in due form.

Procedure.

After these preliminaries were completed, the commissioners proceeded to consider a draft of rules which had been submitted by Mr. Ford, the British agent, to Mr. Foster, the American agent. These rules Mr. Foster in the main approved, but he took exception to one of them which contemplated the appearance of counsel on either side, as well as the accredited agents. He took the ground that no person other than the agents should be permitted to address the tribunal. Mr. Ford maintained the opposite view. The commissioners, after retiring to deliberate, decided that each agent might be heard personally or by counsel, and that the number of counsel on each side should be limited to five, that being the number of the maritime provinces on the Atlantic Coast of British North America, each of which might desire to be heard.

It was decided that the proceedings of the commission should be strictly private, and that the sittings should, unless otherwise ordered, be held daily from noon to 4 o'clock p. m., Saturdays and Sundays excepted.

Affidavits.

A question was also raised as to whether ex parte affidavits should be admitted as written testimony, under the terms of Article XXIV. of the Treaty of Washington. The British agent contended that such affidavits should not be admitted. Mr. Foster, on the other hand, maintained their admissibility, the commissioners being left to attach to them such weight as they might deem proper. The commissioners, after deliberation, decided that such affidavits should be admitted.

Rules.

The commissioners then took up the question of procedure, and adopted rules for its regulation. It was ordered that when the commissioners should have completed all the necessary pre

liminary arrangements, the British agent should present a copy of the "Case" of his government to each of the commissioners, and duplicate copies to the agent of the United States, and that the tribunal should then adjourn for a period of six weeks, on the expiration of one-half of which period the agent of the United States should deliver to the secretary of the commission at least twelve copies of the Counter Case of the United States. To this Counter Case it was ordered that the British agent should, three days before the reassembling of the tribunal, deliver to the secretary at least twelve copies of the "Reply" of his government.

Evidence.

It was further ordered that the evidence in support of the British Case must be closed within a period of six weeks after the case should have been opened by the British counsel, unless a further time should be allowed by the commission on application. A similar period was allowed for the production of evidence in support of the American Counter Case, after the opening of the American case in answer. A period of fourteen days was then allowed for the evidence in reply on the British side, subject to the right of the commissioners to extend the time on application. After the closure of evidence on both sides, each party was allowed an opportunity to file a written argument, that on the part of the United States to be filed first and that on the part of Great Britain subsequently. This having been done, the case of either side was to be considered as finally closed, unless the commissioners should direct further arguments on special points, the British Government having in such event the right of general reply. One counsel only was to be allowed to examine the witnesses and one counsel only to cross-examine the same witnesses, unless otherwise ordered by the commissioners; and it was provided that all witnesses should be examined on oath or solemn affirmation.

After the adoption of this order of proceBritish Counsel. dure, Mr. Ford, the British agent, proceeded to name the British counsel, as follows:

Joseph Doutre, Q. C., of Montreal.

S. R. Thomson, Q. C., of St. John, New Brunswick. Hon. W. V. Whiteway, of St. Johns, Newfoundland. Hon. Louis H. Davies, of Charlottetown, Prince Edward Island, and R. L. Wetherbe, Q. C., ot Halifax, Nova Scotia. The names of counsel on the part of the United States were not announced, Mr. Foster stating that he would request per

mission to name them after such adjournment as might be decided on, after the presentation of the Case of the British Government.

British Case.

Mr. Ford then presented to each of the commissioners a copy of the Case of the British Government, and duplicate copies to the American agent, accompanied with a list of the documents to be filed with the secretary in support of the Case. The commission then adjourned till the next day, the 16th of June, when it met and adjourned until Saturday, the 28th of July, in order that the Counter Case of the United States and the Reply of Great Britain might be prepared and filed.

On the 28th of July the commission met purAmerican Counsel. suant to adjournment, and began its regular sessions. The secretary announced that the rules in regard to the filing of the Counter Case and Reply had been duly complied with. Mr. Foster then named as counsel on behalf of the United States:

Mr. William II. Trescot, of Washington, and

Mr. Richard H. Dana, jr., of Boston.

Other Officials.

Mr. George B. Bradley and Mr. John A. Lumsden, and later Mr. Benjamin Russell, were appointed by the commissioners as stenographers. On the 30th of July, Mr. Foster introduced to the commission Mr. J. S. D. Thompson, of Halifax, and Mr. Alfred Foster, of Boston, who were to attend the commission to perform such duties on behalf of the United States as might be assigned to them. He added that Mr. Henry A. Blood, of Washington, would also attend, to render clerical assistance.

Reading of Cases and Answers.

On the same day, Mr. S. R. Thomson proceeded to open for the British Government, by reading the printed Case submitted in its behalf to the commission. The documents referred to in the Case were read in due order by the secretary. When Mr. Thomson had concluded, Mr. Foster read the Counter Case or Answer of the United States, printed copies of which had already been submitted to the commissioners. He stated, however, that such reading formed no part of his opening, in the course of which he proposed to quote extracts from the Answer. The reading of the Answer was unfinished when the commissioners adjourned till the next day. On the 31st of July, Mr. Foster completed the reading of his Answer, and at its conclusion Mr. S. R.

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