This provision of the award thus seems substantially the result for which the United States has contended.

The necessity of submission to "impartial authority" in case of a contested regulation may well result in practice in the amicable discussion by the interested parties of proposed regulations so as to prevent the delay and expense likely to result from a reference to the "impartial authority" provided for by the award.

The award on the first question is thus in substance a victory for the United States.

Question II involving the right of the United States to employ as members of the fishing crews non-inhabitants of the United States is decided in favor of the right of the United States. The reservation in the second paragraph of the award negatives any treaty rights in aliens, who derive their rights solely from their employer.

In the exercise of the fishing-rights under the convention of 1818, the United States claimed that its inhabitants were not, without its consent, to be subjected "to the requirements of entry or report at custom-houses or the payment of light or harbor dues, or to any other similar requirement or condition or exaction."

The decision of the Tribunal on this point raised by Question III is very reasonable and satisfactory to both parties. The duty to report is not unreasonable, if the report may be made conveniently either in person or by telegraph. If no reasonably convenient opportunity be provided, then the American vessel need not report.

The second and final clause of the award on this point is admirably clear and concise: "But the exercise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formalities of report, entry and clearance at a custom-house, nor to light, harbor or other dues not imposed upon Newfoundland fishermen."

The United States has always admitted and stated in the presentation of its case that American fishing vessels exercising their treaty rights might properly be called upon to make known their presence and exhibit their credentials by a report at customs, but on the other hand, the United States always denied that such vessels could be subjected to the customs regulations imposed upon other vessels, or required to pay light, harbor or other dues not imposed upon local fishing vessels. The award, therefore, sustains the American contention to its fullest extent.

The convention of 1818 permitted American fishermen to enter the

bays or harbors of the non-treaty coast covered by the renunciatory clause "for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever." The treaty specifically subjected American fishermen to such restrictions as might be neceessary to prevent them from abusing the privileges thus reserved.

Great Britain contended as to this question (Question IV), that vessels seeking these non-treaty ports were to be treated as ordinary vessels, subject to local ordinances and regulations, whereas the United States maintained that the ports were to be treated as ports of refuge and that subjection of fishing vessels to the prerequisite of entering and reporting at custom-houses, or of paying light, harbor or other dues would unjustly impair and limit the privileges which the clause meant to concede. The Tribunal adopted the American contention as in accord and with the "duties of hospitality and humanity which all civilized nations impose upon themselves."

To prevent the abuse of the privileges, the Tribunal holds that if the American vessel remains in such ports for more than forty-eight hours, Great Britain may require such vessel to report either in person or by telegraph, at a customs-house or to a customs official, if reasonably convenient opportunity therefor is afforded. Question IV is thus decided in favor of the American contention.

By the convention of 1818 the United States renounced the right "to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbours of His Britannic Majesty's dominions in America" not included within the limits specified by the treaty. Great Britain contended that the United States renounced by this clause the right to fish within all bays and within three miles thereof, whereas the United States maintained that it renounced merely the right to fish within such bays as formed part of His Majesty's dominions, that is to say, territorial bays; that only such bays whose entrance was less than double the marine league were renounced, and that in such cases the three marine miles were to be measured from a line drawn across the bays where they were six miles or less in width. In other words, Great Britain argued that "bays" were used in both a geographical and territorial sense, thereby excluding American fishermen from all bodies of water on the non-treaty coast known as bays on the maps of the period, whereas the United States insisted that "bays" were used in the territorial sense, and therefore limited to small bays.

Question V asked "from where must be measured the three marine miles of any of the coasts, bays, creeks or harbors' referred to in the said Article?" The Tribunal adopted the British contention only to the extent of holding that the word "bays" must be interpreted as applying to geographical bays. "In case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast."

A body of water, geographically called a bay, may cease to have "the configuration and characteristics of a bay" and at this point the line is to be drawn. This would leave each bay to be considered by itself, and the Tribunal recognized that the terms of its award would be too general. Therefore to avoid this difficulty it conceded in part the contention of the United States and recommended the ten-mile provision found in recent fishery treaties and drew the lines in the most important bays of the non-treaty coast in general accordance with the unratified treaty of 1888 between Great Britain and the United States, with, however, very considerable modifications in favor of the United States. Without indulging in criticism of the award, attention is called to the very able dissenting opinion of Dr. Drago.

The attempt of Great Britain under Question VI to exclude American fishermen from “the bays, harbours and creeks" of the treaty coast, which would have worked irreparable injury to American fishing interests, signally failed, and the final question (Question VII) was likewise resolved in favor of the United States, for it is held that its inhabitants are entitled to have for their vessels "the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally," provided "the commercial privileges are not exercised concurrently" with the exercise of treaty rights.

With the exception of Question V, the award of the Tribunal was unanimous.

Both the United States and Great Britain are to be congratulated upon the award. As previously stated, the real importance lies in its international bearings; for it furnishes an example of the peaceful and harmonious settlement of international disputes which will not, it is to be hoped, be without influence upon the world at large.

4 Printed in this JOURNAL, p. 988.

MELVILLE WESTON FULLER

DAVID JOSIAH BREWER

Memorial Note 1

Thrice within a period of less than nine months, as the hand of Death reached forth, has its finger pointed to a member of the Supreme Court of the United States. On October 14, 1909, Mr. Justice Peckham died at his home in Altamont, near Albany, N. Y.; on March 28, 1910, Mr. Justice Brewer died at his home in Washington, and less than four months thereafter, amidst the festivities of our national holiday, on the Fourth of July, came the news of the sudden death of the Chief Justice at the summer home which he had made at Sorrento in his loved and native State of Maine.

Never before in the history of the court has a President been called. upon to fill so many vacancies in so short a period.

All of these men were eminent jurists; all had been on the bench for many years and had gained the confidence of the country. Each had lived beyond the allotted term of three score years and ten, and, under the law, might have laid down the burden of his judicial duties; each however had continued to discharge the functions of his high office from an equally high sense of duty. Mr. Justice Peckham was nearly 71, Mr. Justice Brewer nearly 73 and the Chief Justice was over 77 years of age. Each had demonstrated after he had reached the age of elective retirement that he was still in full mental vigor and strength.

The Chief Justice and Mr. Justice Brewer both died very suddenly. Each was apparently in good health a few hours before the end, and the news of his death came as a shock, not only to the country, but to his family and to his colleagues.

For more than twenty years these two men were closely associated as members of the same court; seated next to each other for more than a third of that time, their intercourse was of the closest. They had many thoughts in common; though on occasions they differed, they were generally found aligned together when the court divided. And so it was when one went, the other quickly followed. Like Saul

1 The JOURNAL is indebted, for this memorial note, to the courtesy of Charles Henry Butler, Esq., Reporter of the Decisions of the Supreme Court of the United States. — ED.

and Jonathan, they were pleasant in their lives and in their death they were not divided.

The lives of Chief Justice Fuller and Mr. Justice Brewer and the numerous able and important decisions rendered by them have been elaborately reviewed in many of the journals of the day, and it is only towards their work in connection with international affairs that the few inadequate words that follow will be directed. The brief summaries which appeared in the latest editions of the Congressional Directory, are appended hereto for reference as to some of the conspicuous events of their lives.2

2 MELVILLE WESTON FULLER, Chief Justice of the United States, was born in Augusta, Me., February 11, 1833; was graduated from Bowdoin College in 1853; studied law, attended a course of lectures at Harvard Law School, and was admitted to the bar in 1855; formed a law partnership in Augusta, Me., and was an associate editor of a Democratic paper called The Age; in 1856 became president of the common council, and served as city solicitor; removed to Chicago, Ill., in 1856, where he practiced law until appointed Chief Justice; in 1862 was a member of the State constitutional convention; was a member of the State legislature from 1863 to 1865; was a delegate to the Democratic national conventions of 1864, 1872, 1876, and 1880; the degree of LL. D. was conferred upon him by the Northwestern University and by Bowdoin College in 1888, by Harvard in 1890, by Yale and Dartmouth in 1901; was appointed Chief Justice April 30, 1888, confirmed July 20, 1888, and took the oath of office October 8, same year. He was chancellor of Smithsonian Institution; chairman trustees Peabody Education Fund; vice-president John F. Slater Fund; member board of trustees of Bowdoin College; one of the arbitrators to settle boundary line between Venezuela and British Guiana, Paris, 1899; member permanent court of arbitration, The Hague; member arbitral tribunal in the matter of the Muscat Dowhs, The Hague, 1905; received thanks of Congress December 20, 1889.

DAVID JOSIAH BREWER, Associate Justice of the United States Supreme Court, was born in Smyrna, Asia Minor, June 20, 1837; was the son of Rev. Josiah Brewer and Emilia A. Field, sister of David Dudley, Cyrus W., and Justice Stephen J. Field; his father was an early missionary to Turkey; was graduated from Yale College in 1856 and from the Albany Law School in 1858; established himself in his profession at Leavenworth, Kan., in 1859, where he resided until he removed to Washington to enter upon his duties; in 1861 was appointed United States commissioner; during 1863 and 1864 was judge of the probate and criminal courts of Leavenworth county; from January, 1865, to January, 1869, was judge of the first district court of Kansas; in 1869 and 1870 was county attorney of Leavenworth; in 1870 was elected a justice of the Supreme Court of his State, and re-elected in 1876 and 1882; in 1884 was appointed judge of the Circuit Court of the United States for the eighth district; was appointed to the Supreme Court, to succeed Justice Stanley Matthews, deceased, in December, 1889, and was commissioned December 18, 1889; president