contention that only those controversies are justiciable in this court which, prior to the Union would have been just cause for reprisal by the complaining State and that according to international law reprisal can only be made when a positive wrong has been inflicted or rights stricti juris withheld" he asked:

But when one of our States complains of the infliction of such wrong or the deprivation of such rights by another State, how shall the existence of cause of complaint be ascertained, and be accommodated if well founded? The States of this Union cannot make war upon each other. They cannot " grant letters of marque and reprisal." They cannot make reprisal on each other by embargo. They cannot enter upon diplomatic relations and make treaties. The publicists suggest as just causes of war, defense, recovery of one's own, and punishment of an enemy. But as between States of this Union, who can determine what would be a just cause of war? And, applying the principles settled in previous cases, we have no special difficulty with the bare question whether facts might not exist which would justify our interposition.

He disposed of the suggested difficulty as to determining the law of the case by declaring that in such cases the court sat as it were as an international as well as a domestic tribunal.

The demurrer was overruled and when the case came again to the court Mr. Justice Brewer wrote the opinion. He reiterated the above proposition, citing the remarks of the Chief Justice to the effect that the court in such a case sat as an international court and applied international law. The proposition that a State might have a right to prevent another State from wholly diverting the water of interstate. streams was sustained, but the court was of opinion that Kansas had not demonstrated that it had been sufficiently deprived of the waters of the river to justify the interposition of the court and the bill was dismissed without prejudice.

When West Virginia became a separate State in 1863, Virginia was heavily indebted on its State bonds, and, in 1907, after more than forty years of ineffectual negotiations with its offspring to adjust and divide. responsibility, it filed its bill in the Supreme Court of the United States to compel West Virginia to assume or pay a portion of that indebtedness. West Virginia demurred on various grounds and denied the jurisdiction of the court. The leading argument for that State was made by Mr. John G. Carlisle, who, like three of the justices participating in the decision, has not lived to see the conclusion of the case.

The Chief Justice after an elaborate statement of the case, sustained the jurisdiction of the court, and, disposing of all the other matters

raised by it, overruled the demurrer. The case was sent to a master to take testimony and is now before the court for final hearing.

After the "Oyster Wars" in the disputed waters of the Gulf of Mexico, Louisiana filed its bill in the Supreme Court of the United States against the State of Mississippi to determine the boundary line. The Chief Justice delivered an opinion (202 U. S. 1), largely sustaining the contentions of Louisiana and applying the doctrine of the thalweg the deepest channel. Up to that time, the rule of the thalweg had been applied to rivers, but in this case, the court was (p. 50) "of the opinion that, on occasion, the principle of the thalweg is applicable in respect of water boundaries to sounds, bays, straits, gulfs, estuaries and other arms of the sea," in fact, wherever there is a deep water sailing channel, the rule applies.

The question of prescription was also involved and the Chief Justice reiterated the rule many times held by the court that as

Between States of the Union, acquiescence in the assertion of a particular boundary and the exercise of dominion and sovereignty over the territory within it, should be accepted as conclusive, whatever the international rule might be in respect of the acquisition by prescription of large tracts of country claimed by both.

Wright v. Henkel (1903, 190 U. S. 40), was a habeas proceeding in which the appellant Whitaker Wright sought to be discharged in extradition proceedings on the ground that the statutory crime of forgery by alteration of papers for which he was indicted in England was not a crime at common law or by Act of Congress or by preponderance of the statutes of the States. The Chief Justice, speaking for a unanimous court, declared that treaties must receive a fair interpretation according to the intention of the parties, and, while under the general rule of international law, the offense for which extradition is asked must be made criminal by the law of both countries, in this case, as the act charged was a crime in Great Britain and also in New York, where the arrest was made, the fugitive could be extradited. Wright was remanded, taken back to England, where he pleaded not guilty, was tried and convicted. The trial was a sensational one, and, when the jury brought in a verdict of guilty, Wright immediately swallowed some poison with which he had armed himself in case of such a result, and which was of such powerful potency that he expired in the court room. War always creates material for courts both national and international, and the Spanish-American War was no exception. While, owing

to the brief period of belligerency, there were far fewer prize cases than during the Civil War, those that were brought to the court involved large sums and great principles of law. Chief Justice Fuller delivered the opinion of the court in several of these cases, notably in the Carlos F. Roses (177 U. S. 655), where by a divided court the cargo of the vessel was condemned on the ground that its ante-bellum Spanish character had not been changed by an attempted transfer through endorsement of the bills of lading to a neutral, and, as the vessel was an enemy vessel, the presumption was that the cargo was enemy property also, and this could only be overcome by clear and positive evidence to the contrary. Mr. Justice Brewer joined in a dissent written by Mr. Justice Shiras.

In the Pedro (175 U. S. 354), the Chief Justice spoke for the court for condemnation of a Spanish vessel as not being exempted under the proclamation of April 26, she being in a Spanish, and not an American port, at that time and having been subsequently captured on the high seas. The case was a hard one but a majority of the court considered that the exemption did not apply under the strict rule of war and that the vessel was lawful prize. Mr. Justice Brewer in this case also united in the dissent which was written by Mr. Justice White, the contention. of the minority being that under the circumstances the condemnation deprived the vessel of the protection intended by the proclamation, which should have been carried out according to the commendable principles of honesty and humanity now enforced by all civilized nations at the outbreak of war.

In the Benito Estenger (176 U. S. 568) the Chief Justice delivered the opinion, in which Mr. Justice Brewer concurred, affirming the condemnation of a vessel as enemy property including in that term "property engaged in illegal intercourse with the enemy, whether belonging to an ally or a citizen, as the illegal traffic stamps it with the hostile character and attaches to it all the penal consequences."

The Chief Justice delivered the opinions also in the cases of the Manila Prize Money (188 U. S. 254) and in the Infanta Maria Theresa (188 U. S. 283), but they were cases involving the construction of federal statutes concerning distribution of prize money rather than principles of prize under international law.

After the termination of the war by the treaty of peace in December 1898, many questions arose as to the construction of that treaty and the rights of persons and property affected thereby, and in several

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cases of this nature the Chief Justice expressed the views of the court. In Gonzales v. Williams (192 U. S. 1) he announced the unanimous opinion, against the contention of the Government, which had succeeded below, that whatever might be the citizenship status of a woman. coming from Porto Rico and who had been excluded from entering the port of New York under the alien immigrant law, she was not an alien and the Act was inapplicable to her case.

In the case of Ponce v. Roman Catholic Church (210 U. S. 296) he showed by an historical review of cases and precedents that the Roman Catholic Church was a juridical person whose property was entitled to protection under the terms of the treaty.

These are but a paltry few of the cases decided and opinions delivered by these two jurists. It would involve an examination of between seventy-five and a hundred volumes of reports to give them all: the few that are cited have been selected to show what broad subjects they were called upon to consider and how they were able to meet the great questions involved as they arose.

It is impossible to attempt to estimate the weight of their utterances and the effect they will have in future years, but it certainly can be said that these men assisted in developing in accordance with good conscience and in the right direction, the great body of legal principles with which they dealt in administering justice between their fellow men, and no one can deny that each fulfilled both in letter and spirit the oath which he took on his accession to the bench "to administer justice without respect to persons, do equal right to the poor and to the rich and to faithfully discharge the duties incumbent upon him."

But there is another phase of the lives of these men which deeply impressed all who knew them intimately. There was a divinely human side to each. The hand that could without a tremor sign the decree that settled the fate in the pending controversy of man or State or nation could yet reach forth and hand a cup of cold water to the least who needed it. There was intellect, but there was heart also; each was a consistent and zealous Christian, in private life as well as in the church; and each held high office in his own denomination.

Each recognized his duty to his fellow man and did his best to fulfil it.

Notwithstanding their arduous labors on the bench each found some time to devote to the affairs of their fellow men. The Chief Justice gave a full quota of attention to the Smithsonian Institution, of which

he was the chancellor, and to the Peabody Education Fund, of which he was a trustee; Mr. Justice Brewer for years acted as president of the charity organization of our capital city. Each could well and truly have said for himself

I live for those who love me

Who know me well and true,

For the Heaven that smiles above me

To receive my spirit too.

For the wrong that need resistance,

For the right that need assistance,

For the future in the distance,

For the good that I may do.

Of all the utterances from the presiding officer of that highest court in the land and they have been many and have been pronounced in cases of far-reaching importance and involving great principles - none have left a deeper impression on the writer than the words which he uttered with heart-felt and throbbing emotion in response to the remarks of the Attorney-General on presenting the resolutions of the bar on the death of Mr. Justice Brewer. He voiced the sentiments of all those who knew that Justice intimately when he declared "that it was not his magnificent judicial labors but the ineffable sweetness of his disposition that chiefly impressed itself upon us." Surely the same words can apply to the Chief Justice himself, and there can be no words more fitting, as to both of its subjects, with which to close this article than those in which, on the same occasion, the survivor paid a beautiful and affectionate farewell to the loved brother and colleague who had preceded him. "It has been my sad duty," he said in further response to the Attorney-General,

to accept for the court tributes of the bar in memory of the many members of this tribunal who have passed to their reward. As our Brother Brewer joins the great procession, there pass before me the forms of Matthews and Miller, of Field and Bradley and Lamar and Blatchford, of Jackson and Gray and of Peckham, whose works follow them now that they rest from their labors. They were all men of marked ability, of untiring industry, and of intense devotion to duty, but they were not alike. They differed "as one star differs from another star in glory." Their names will remain illustrious in the annals of jurisprudence. And now we are called on to deplore the departure of one of the most lovable of them all.

He died suddenly, but not the unprepared death from which we pray to be delivered. When the unexpected intelligence was conveyed to me I could not but think of Mrs. Barbauld's poem on "Life," and seemed to hear our dear friend exclaim