My object in referring to the question here was to clear away possible doubt which might cause controversy in the future, and to do it now before the award of the Arbitrators, because I should think that it might be very well in the award to fix the rights of the parties with some reference to this provision, so that it would not be left an open question.1

It is betraying no confidence to state that Article 4 of the Special Agreement was drafted by Mr. Root in the hope and with the confident expectation that it would appeal to the British Government as the way out of the difficulties that beset its advocates in the trial and disposition of the case, and that it would be proposed by Great Britain during the argument as the solution of future fishing disputes.

The next episode really decided the case, because, accepting Article 4 of the Special Agreement as a binding and continuing treaty between Great Britain and the United States "the treaty as Mr. Root was accustomed to call it an understanding was reached by virtue of which the reasonableness of fishing regulations to which the United States objected was to be tested by the procedure contained in Article 4 of the Special Agreement. The understanding and the way in which it was reached are set forth in the proceedings of the official record, under date of August 4, 1910, from which the material portion is quoted:

SENATOR ROOT: If any question arises regarding the exercise of the liberties referred to in the treaty of 1818 . . . it may be determined in accordance with the principles laid down in the award. The Tribunal is to " recommend, for the consideration of the contracting parties, rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties by them referred to may be determined in accordance with the principles laid down in the award."

If the rules are not adopted

"then any differences which may arise in the future between the High Contracting Parties relating to the interpretation of the Treaty of 1818 or to the effect and application of the award of the Tribunal 1 North Atlantic Coast Fisheries Arbitration at The Hague, Oral Argument before the Tribunal constituted under an Agreement signed at Washington, on the 27th day of January, 1909, between His Britannic Majesty and the United States of America, part II, p. 1210 (London, 1910); North Atlantic Coast Fisheries. Proceedings in the North Atlantic Coast Fisheries Arbitration before the Permanent Court of Arbitration at The Hague under the provisions of General Treaty of Arbitration of April 4, 1908, and the Special Agreement of January 27, 1909, between the United States of America and Great Britain, vol. XI, p. 1999 (Washington, 1912).

shall be referred informally to the Permanent Court at The Hague for decision." ..

THE PRESIDENT: According to the fourth article, the solution would be that either this Court would propose some method of procedure to which both governments would accede, by their free-will they are not obliged, at all, to accede to them; it is a pure recommendation or if they do not accede, then both parties have bound themselves by article 4 to submit future contestations to the decision of The Hague Tribunal in the summary procedure.

Would it not seem that both parties would gain by this method? SENATOR ROOT: Precisely; both parties would gain by this method.

SIR CHARLES FITZPATRICK: Do I understand you to say, then, that if you object, and the principle is adopted that in case of your objection the regulation would not have effect until such time as it would be submitted to The Hague Tribunal, that you would be satisfied with that?

SENATOR ROOT: Precisely. Certainly. That is what we are contending for. And I think that this treaty grant draws clearly the line within which that principle applies; that Great Britain has full and unrestrained scope of sovereignty until she comes to that clear and definite line, that is, of the exercise of the right of fishing, as granted in the terms of the grant; but when she comes to that narrow field, wishing to change the situation by making a new limitation, that was not in the treaty, a limitation upon the times or manner, then that ought to be in practical good sense the subject of consultation between both owners of the common right; and if they cannot agree, let it be determined before it is made effective and our fishermen's vessels are seized under it. My objection to the British theory is that they propose to make these things effective by virtue of their sovereignty, ex proprio vigore, before anybody has decided. Sir Robert Finlay says they have not the right to decide; that they do not claim the right to decide; that they ought not to decide — but they propose to make effective these limitations by deciding.

THE PRESIDENT: Your rights, as you consider them, would be safeguarded by conceding to you a suspensive veto ? . . .

SENATOR ROOT: Precisely. Before this treaty was made, what we claimed was that instead of going ahead and putting your regulations, extending your sovereignty, over the modification of this right without saying anything to us, you should consult us first, just as you did with Mr. Marcy, when these laws were brought down to him and he approved them. And in order to obviate the claim that that might lead to a deadlock, and might put Great Britain in a most disagreeable situation, because she has got this colony behind her, pressing

always for extreme views and extreme action, we make this agreement, under which, if we cannot agree upon what ought to be put into force, we will go to The Hague Tribunal, and we will have an arrangement, perhaps a more convenient and practical arrangement, proposed by the Tribunal, for determining whether they ought to be put into effect or not.

SIR CHARLES FITZPATRICK: Or the parties can arrange it themselves?

SENATOR ROOT: Certainly; and they will arrange it. There is no trouble about making the arrangement. The great trouble is, and the best thing that can be done for Great Britain - I know my friends on the other side will smile at me when I say it, but I say it not proposing to arrogate to myself the position of a guardian for Great Britain the best thing that can be done for Great Britain is to give a line of right here so that she will not be in the position of having either to assent to unjust and extreme positions taken by her colony, in the spirit that has been exhibited here, against her own feeling of what is really due to us on the one hand, or to overrule them and have her colony feel that she has been unkind towards the colony, and has been deciding against it of her own will. . . .1

It is thus seen as a result of the exchange of views between Mr. Root and Sir Charles Fitzpatrick that the basis of settlement was struck off in the heat of argument between counsel and judge, as is so often the case in the courts of the English speaking peoples.

The award of the tribunal determines the right of the United States under the convention of 1818 and enables the Government to inform American fishermen of their rights and duties, thus settling old controversies and preventing new ones, and in determining the rights of Great Britain under the same convention enables the British Government to hold the colonies to the strict observance of their duties as defined by the award without the suggestion of undue imperial interference or dictation. The award is therefore mutually beneficial to the two countries so recently contending at The Hague, even although it may not have given to either

1 North Atlantic Coast Fisheries Arbitration at The Hague, Oral Argument before the Tribunal constituted under an Agreement signed at Washington on the 27th day of January, 1909, between His Britannic Majesty and the United States of America, part II, pp. 1206–1208 (London, 1910); North Atlantic Coast Fisheries, Proceedings in the North Atlantic Coast Fisheries Arbitration before the Permanent Court of Arbitration at The Hague under the provisions of General Treaty of Arbitration of April 4, 1908, and the Special Agreement of January 27, 1909, between the United States of America and Great Britain, vol. XI, pp. 1992-1996 (Washington, 1912).

the full extent of its claims. The example to the world is greater than the benefit to either litigant and the advantage to each transcends the terms of the award.

In the final position assumed in submitting the case to arbitration, the Government of Great Britain contended for the right directly or indirectly through Canada or Newfoundland, to make regulations applicable to American fishermen in treaty waters without the consent of the United States, in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coast; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts, provided such regulations were" reasonable, as being for instance, appropriate or necessary for the protection and preservation of such fisheries; desirable on grounds of public order and morals; equitable and fair as between local fishermen and the inhabitants of the United States."

The United States, on the other hand, denied the right of Great Britain to make such regulations "unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement."

The fishing regulations were thus by the submission of both parties to be reasonable; but who was to pass upon the question of reasonableness? The tribunal affirmed the right of Great Britain "to make regulations without the consent of the United States" but lays down that "such regulations must be made bona fide and must not be in violation of the said treaty"; and that "regulations which are appropriate or necessary for the preservation of such fisheries, or desirable or necessary on grounds of public order and morals without unnecessarily interfering with the fishery itself, and in both cases equitable and fair as between local and American fishermen, and not so framed as to give an advantage to the former over the latter class, are not inconsistent with the obligation to execute the treaty in good faith, and are therefore not in violation of the treaty."

So far the award is squarely in favor of Great Britain, but the award goes further and holds that, if the reasonableness of a regulation is contested, Great Britain is not to be the judge of what is or what is not reasonable. The language of the award on this crucial point is as follows:

By reason, however, of the form in which Question I is put, and by further reason of the admission of Great Britain by her counsel before this Tribunal that it is not now for either of the parties to the treaty to determine the reasonableness of any regulation made by Great Britain, Canada, or Newfoundland, the reasonableness of any such regulation, if contested, must be decided not by either of the parties, but by an impartial authority in accordance with the principles herein

above laid down, and in the manner proposed in the recommendations made by the Tribunal in virtue of Article IV of the agreement.1 But as the present purpose is not to examine the recommendations drawn up by the tribunal and inserted in the award, it is sufficient to state that Great Britain is no longer to be the judge of the reasonableness of a contested regulation and that the reasonableness or unreasonableness of future regulations is henceforth to be determined by impartial authority instead of by partial authority as in the past. This provision of the award thus seems to grant substantially the result for which the United States 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 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 to custom-houses, but on the other hand, the United

1 Official Report published by the Bureau of the Permanent Court of Arbitration in the North Atlantic Coast Fisheries case, arbitrated at The Hague, 1910, p. 126.