had been temporarily quiescent, broke out again with renewed vigor. The failure of the United States to ratify this treaty was regarded by the Newfoundland Government as sufficient justification for terminating all the commercial privileges which had always theretofore been extended to American fishing vessels, both on the treaty coasts and on the other coasts of Newfoundland; and this new policy was adopted with the avowed purpose of compelling the United States to admit Newfoundland fish and fish products to the American markets free of duty, in exchange for enlarged trading and fishing rights on the Newfoundland coasts.

In carrying out this new policy the Newfoundland Government also undertook to impose certain limitations and restrictions upon the exercise by the American fishermen of their treaty liberties in Newfoundland waters, which the United States regarded as in conflict with their rights under the treaty.

Such briefly, was the situation with which Mr. Root was called upon to deal when he became Secretary of State in the latter part of the year 1905.

An examination of the history of this controversy and the uniform failure of every previous attempt to settle it by submerging the disputed rights of the old treaty in enlarged fishing privileges exchanged for tariff concessions to Newfoundland and Canada, convinced Mr. Root that before a permanent settlement could be effected the respective rights of the parties under the treaty of 1818 must first be determined. He, therefore, proceeded at once to enter upon negotiations with Great Britain for the purpose of defining the fishing rights of American fishermen under the treaty, and restraining the Colonial Governments from interfering therewith. It soon became evident in the diplomatic discussion which ensued that, on account of the wide divergence of view between the two governments as to the true intent and meaning of the treaty provisions, it would be impossible to reach an agreement upon a common basis for a permanent adjustment of all the questions in dispute; and it was recognized on both sides that recourse must be had to arbitration. Accordingly, pursuant to the provisions of the general arbitration treaty of April 4, 1908 between the United States and Great Britain, which meanwhile had been entered into, a special agreement

for the arbitration of this controversy was concluded on January 27, 1909. By this agreement seven questions, covering all the unsettled matters of difference growing out of the fisheries provisions of the treaty of 1818, were referred for decision to a tribunal of arbitration constituted in accordance with the provisions of The Hague Convention of October 18, 1907 for the pacific settlement of international disputes, and special provisions were adopted governing the procedure before the Tribunal and providing an expeditious and effective method of giving practical effect to the award of the Tribunal, and of determining any new questions which might arise in the future as to the meaning of the award, or of the fisheries provisions of the treaty of 1818.

The Tribunal consisted of five members 2 who were selected by common accord between the United States and Great Britain from the members of the Permanent Hague Court. As is customary in such cases, each government was represented by an agent. The agent in international proceedings acts for and stands in the place of his government before the Tribunal, and is responsible for the preparation and presentation of the case on his side, having general control over the proceedings on behalf of his government before the Tribunal, with all the necessary authority which such responsibilities entail. In addition to the agents, each government was represented by counsel, six appear

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2 Mr. H. Lammasch, Doctor of Law, Professor of the University of Vienna, Aulic Councillor, Member of the Upper House of the Austrian Parliament; His Excellency Jonkheer A. F. de Savornin Lohman, Doctor of Law, Minister of State, former Minister of the Interior, Member of the Second Chamber of the Netherlands; Honorable George Gray, Doctor of Law, formerly United States Senator, Judge of the United States Circuit Court of Appeals; The Right Honorable Sir Charles Fitzpatrick, Doctor of Law, Chief Justice of Canada; Honorable Luis Maria Drago, Doctor of Law, former Minister of Foreign Affairs of the Argentine Republic, Member of the Law Academy of the University of Buenos Aires.

3 Honorable Chandler P. Anderson, Agent for the United States; The Honorable Allen B. Aylesworth, Minister of Justice of Canada, Agent for Great Britain.

Counsel for the United States: Honorable Elihu Root, Honorable George Turner, Honorable Samuel J. Elder, Charles B. Warren, Esquire, James Brown Scott, Esquire, and Robert Lansing, Esquire.

Counsel for Great Britain: The Right Honorable Sir William Snowdon Robson, Attorney General of Great Britain; The Right Honorable Sir Robert Bannatyne Finlay, former Attorney General for Great Britain; The Honorable Sir Edward P. Morris, Prime Minister of Newfoundland; The Honorable Donald Morrison, Minister

ing on behalf of the United States, and seventeen on behalf of the British and Colonial Governments.

The questions submitted for decision all called for an interpretation of the fisheries provisions of the treaty of 1818, and involved an examination not only of the language of that treaty, but also of the events leading up to it, and the subsequent governmental actions on each side bearing on its interpretation. The discussion of these questions, therefore, required the compilation and presentation of all the material and pertinent evidence available showing the history of the American fishing rights in British waters from colonial days down to the present time, covering a period of more than one hundred and twenty-five years. This evidence comprised the diplomatic correspondence between the United States and Great Britain and the British Colonial correspondence bearing upon these questions, also all legislative and executive acts on both sides pertinent to the issues, together with all records, so far as they were available and material, of the negotiations leading up to, as well as the language of the treaties of 1783, 1814, 1818, 1854, 1871 and the unratified treaties of 1888, 1890 and 1902, and the modus vivendi relating to the fisheries entered into in 1885, and the subsequent ones of 1888, 1906, 1907 and 1908 respectively, and also a number of treaties between Great Britain and France, and the United States and France, in so far as they had a bearing upon the interpretation of the treaty of 1818.

Before the meeting of the Tribunal, the agent of each government delivered to the other and to the members of the Tribunal a printed case presenting the evidence relied upon, and the conclusions drawn from it in support of the contentions of his government; and printed countercases in reply were also served, followed by printed arguments on the law, with citations of authorities and precedents.

The Tribunal met on June first at The Hague to hear the oral arguments, which were presented by four counsel on each side, Great Britain taking the opening, and the United States the closing argument, in

of Justice of Newfoundland; Sir James S. Winter, former Attorney General of Newfoundland; Mr. John S. Ewart, Mr. George F. Shepley, Sir H. Erle Richards, Mr. A. F. Peterson, Mr. W. N. Tilley, Mr. Raymond Asquith, Mr. Geoffrey Lawrence, Mr. Hamar Greenwood, Messrs. Blake and Redden, Mr. H. E. Dale.

accordance with an arrangement entered into by the agents and counsel. These arguments extended over a period of nine weeks from June 6th to August 12th, consuming forty sessions of the Tribunal. On September 7th, within less than a month after the close of the oral argument, the Tribunal announced its award.

The first question submitted for decision called upon the Tribunal to determine to what extent, if at all, the British or Colonial Governments were entitled, without the consent of the United States, to limit or restrain the time, methods, or implements of fishing by American fishermen exercising their treaty liberties in British territorial waters. Great Britain had already admitted, in the negotiations which resulted in this arbitration, that no such limitations could be imposed unless they were appropriate and necessary for the protection and preservation of the fisheries, and reasonable in themselves, and fair as between British and American fishermen. This admission was incorporated in the question as submitted for decision, and to that extent the contentions of both governments coincided. But the question of the enforcement against American fishermen of fishing regulations objected to by the United States as not appropriate, necessary, reasonable, or fair, remained to be determined. The importance of this question to the United States was due to the fact that, owing to the competition between the American fishermen and certain Newfoundland local interests, the Newfoundland Government was attempting to enforce a number of fishing regulations, some of which, although in form applying to all fishermen alike, in fact applied only to American fishermen and constituted a very serious discrimination against them, and all of which were regarded by the United States as unreasonable and unnecessary.

The clause of the treaty which gave rise to this feature of the controversy provided merely that "the inhabitants of the United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind" on the so-called treaty coasts. The British contention rested on the argument that the words "in common with the subjects of His Britannic Majesty" meant that American fishermen should be on exactly the same footing as local fishermen in British waters, and therefore subject to the same governmental control exercised by Great Britain and her Colonies over British subjects.

The United States, on the other hand, showed by the negotiations resulting in that treaty, as well as by means of the antecedent French fishing treaty rights on the Newfoundland coast, that the words "in common" were used to negative the implication, which otherwise would have arisen, that American fishermen were to have an exclusive right of fishing. The United States further maintained that, instead of subjecting American fishermen to local regulations, the effect of the treaty was either to establish a fishery common to both nations, in which the United States had an equal interest with Great Britain, thus creating an international servitude depriving Great Britain of a portion of her sovereignty in the treaty waters, or else, in the alternative, that the treaty must be regarded as imposing upon Great Britain a contractual obligation limiting the exercise of British sovereignty in treaty waters, to the extent that the prerequisite of reasonableness must be determined before regulations could be enforced against American fishermen, and that neither Great Britain nor her Colonies could be the sole judge of the question of reasonableness.

Much to the satisfaction of Great Britain, the Tribunal did not support the extreme contention of the United States that Great Britain had transferred to the United States sovereign rights in the treaty waters; but, equally to the satisfaction of the United States, the Tribunal further decided that, although British sovereignty in such waters remained intact, yet a limitation had been imposed upon the exercise of such sovereignty to the extent claimed by the United States, so that in case of any dispute as to the reasonableness of regulations their enforcement against American fishermen must be suspended until they were held to be reasonable, as defined in the award, by an impartial tribunal in accordance with certain rules and a method of procedure which were embodied in the award and recommended by the Tribunal for the adoption of the two governments. The British Government objected strongly to some of these rules as an unnecessary limitation upon British sovereignty, and took the position that although they were embodied in the award, they did not form part of it, and were not binding upon the two governments, being merely in the form of recommendations for their adoption, and that it was open to the two governments to reject them altogether, or adopt them with modifications. As a result of protracted