has arisen temporarily to disturb friendly relations between the United States and Great Britain. The origins of the dispute reach back to the earliest days of our history as a nation, involving an interpretation of the treaties of 1783 and 1818, and its final satisfactory settlement by arbitration speaks volumes for the temper of the litigating nations, the fairness of the arbitral tribunal, and, not least of all, the ability of counsel in presenting to the court the respective contentions of Great Britain and the United States. The case was presented by prominent lawyers from both countries, and the leading counsel of the United States was none other than Elihu Root, who had during his incumbency as Secretary of State taken an active part in drawing the issues for arbitral settlement of the complicated questions involved, and had, in fact, with James Bryce, signed the special agreement under which the two countries laid their differences before a court of arbitration. It was, therefore, appropriate that he should be selected to head the legal forces of the United States, and the satisfactory settlement which has been reached is in no small degree due to his personal contributions to the American argument. The case served again to emphasize the remarkable abilities of a man who, after many years' absence from the bar in the fulfilment of important public duties as Secretary of War, Secretary of State, and United States Senator, could demonstrate with ease the finest technique of advocacy such as was required in the responsible effort of closing the case of the United States by a six-day argument. His wonderful command of hundreds of documents and of the full import of some thirty days of arguments of respective counsel preceding the opening of his own argument, which consisted largely of refutation and summing up, evoked the admiration of those who heard Mr. Root's able presentation of the American case and will produce the same effect upon those who read the work now under review. The work constitutes one of a series of volumes, edited by Robert Bacon and James Brown Scott, which are designed to republish for a wider public some of the more notable addresses and state papers of Mr. Root.

The foreword of the book, which betrays the facile pen of Dr. Scott, presents in forty-eight pages an interesting account of the history of the fisheries dispute, of the issues involved in the arbitral submission, and of the tribunal's award and its effect. The appendix to the foreword reprints the fisheries articles of the treaties of 1783 (Art. 3) and of 1818 (Art. 1), the general arbitration treaty of 1908, the special agreement of 1909 which constituted the arbitral compromis, the award of the arbitral tribunal, and the British-American agreement of 1912 carrying out, with modifications, certain of the tribunal's recommendations as to procedure for the determination of what is a “reasonable" regulation of the fisheries on the treaty coasts. The remainder of the book is a verbatim reprint of the argument of Mr. Root, taken from the official report of the proceedings.

The dispute involved the interpretation of a treaty granting to American citizens in Canadian waters certain exceptional fishing rights, privileges, powers, and immunities which, in the course of time, as conditions changed, brought up new situations not contemplated by the negotiators of the treaty. These rights became of great commercial importance to the inhabitants of New England as improved methods of fishing were invented, and their exercise by Americans was looked upon with a jealous eye by the Canadians, and also by the inhabitants of Newfoundland, whose shores and waters were principally involved in the grant. Numerous efforts at a settlement of the whole question by treaty having failed, Newfoundland again brought the dispute to a head by the promulgation in 1905 of vexatious regulations, enacted and enforced without advance notice to American fishermen, whose fishing rights and privileges were thereby greatly restricted and hampered. A modus vivendi

tempered the bitterness of the issue for a time, but the United States could not tolerate a permanent assumption of Newfoundland's alleged right to enact any regulations it saw fit without consent of the United States. But for the fortunate wording of the special agreement, the United States would have completely lost its contention before the tribunal on this point, which became Question 1 of the arbitral agreement. That agreement put in issue the question whether Canada and Newfoundland could enact "reasonable" regulations without consent of the United States. As a matter of law, the United States contention that the treaty had created a servitude in favor of the United States, that is, a limitation upon British sovereignty, was emphatically denied; but inasmuch as "reasonableness" requires a standard by which it was to be measured, and inasmuch as British counsel had in argument admitted that Canada or Newfoundland could not arbitrarily determine what was "reasonable," the tribunal decided that while Canada and Newfoundland possessed sovereignty in the waters in question, the reasonableness of regulations should be submitted to an arbitral test whenever their reasonableness was challenged by the United States. The procedure recommended by the tribunal for carrying out this award has been substantially adopted by the two countries; and under it no fishing regulations can be enforced against American citizens until they have been duly published for given periods and the United States has been given full opportunity (seven months in all) to ol ject to their enforcement on the ground of unreasonableness, and until the question of reasonableness, if challenged by the United States, has been submitted to an impartial body of experts. While the United States lost its legal argument, it did in fact win practically everything for which it had, on this point, contended.

The other important legal question was Question 5. The treaty of 1818 had renounced certain American rights and privileges granted in the treaty of 1783, and, among others, the "liberty to take, dry, or cure fish on

or within three marine miles of [certain] coasts, bays, creeks, or harbors of his Britannic Majesty's Dominions in America." The question was, What was three miles from a bay? The negotiators had overlooked this problem. The United States contended that they meant a territorial bay; that is, a bay ceased to be a territorial bay at the point where it became wider than six miles, and from the line across the bay at that point the three miles were to be measured. Great Britain contended that they meant a geographical bay; that is, anything called a bay on the map, no matter how wide, was a bay within the meaning of the treaty, and the headland theory, by which a line connecting the headlands marked the limits of the bay, applied. Again the tribunal, with a strong dissenting opinion by Dr. Drago, of Argentina, supported the British legal contention, but in fact recommended that the difficult problem be settled by drawing in certain bays the lines which had been embodied in the unratified Bayard-Chamberlain treaty of 1888, and as to other bays adopting a ten-mile width, according to the general modern rule as to the limit of territorial waters in bays from which the three miles are to be measured. The five remaining questions, while economically of great importance, did not involve any intricate legal questions, but were confined principally to the interpretation of words and phrases in the treaty of 1818. They involved questions concerning the conditions under which the fishing industry was to be carried on: whether American fishermen could employ Canadians in their crews; whether certain bays, creeks, and harbors were included in the treaty grant; whether American fishing vessels could be subjected to entry and report at custom-houses and the payment of certain dues; and whether fishing vessels could engage in trade. While some of these questions were not satisfactorily answered, the award of the tribunal was in all cases eminently fair, and,

on the whole, satisfactory to the United States. A great and troublesome question has thus been removed from the field of international controversy, with mutual satisfaction to the interested parties. The American contribution to this happy solution is largely due to the efforts of Elihu Root.

EDWIN M. BORCHARD

YALE UNIVERSITY

The practical conclusion that we draw from the doctrine of evolution is that we can only erect a stable structure by building upon a plan that already exists, and the more closely a new development approximates to the nature of a growth, the more lasting it is likely to be. The history of law and of political institutions provides numberless illustrations of the validity of this principle, in fact such history can be regarded as one long commentary upon it.

At the present time it would be a work of supererogation to offer any general account of the idea of a League of Nations, or to adopt the more specific and accurate term, a league to enforce peace. But it does not appear inappropriate to examine the idea in the light of a general principle, and to see what analogies we can find in history. that may give us encouragement on the one hand, and suggest hidden dangers on the other. To the mind of a trained jurist these considerations will appear so elementary as to be unworthy of repetition, but when an eminent historian in a pamphlet on this very subject can seriously enunciate the proposition that International Law is merely a mixture of literature and ethics, one may venture to be elementary without giving offense.

Any general examination of the idea of law would take us too far afield, but there is one element in it that is essentially germane to our purpose. In highly civilized societies disobedience to the law is followed, with a degree of certainty varying according to the efficiency

of the government, by consequences of a decidedly unpleasant character. In such societies these consequences result from the action of the government, acting either upon its own initiative, or upon that of the parties concerned. The success of the state in attaching such results to breaches of law is never absolute, for in all places some crimes go unpunished, and some laws cannot be enforced; but the degree of certainty attained is no mean test of the level of civilization in the particular community concerned. In the technical language of jurisprudence these consequences are termed the sanction of law. They are its coercive element, and because of their existence we say that men are "bound" or "obliged" to obey the law.

Obvious and necessary as this may appear now, it is in reality a comparatively late development in the history of civilization, and one that was attained only by slow degrees, and after long and painful struggles. "That imperative character of law, which in our modern experience is its constant attribute, is found to be wanting in societies. which it would be rash to call barbarous and false to call lawless."1 From Iceland and Ireland, from ancient Rome and ancient England, we can produce numerous instances of the time when the jurisdiction of the courts was like a voluntary submission to arbitration, and the execution of their decrees was left to the strong arm of the party adjudged to be law-worthy. The historians of legal institutions can trace the steps by which the arm of the law gradually acquired strength, and the exercise of private force was insensibly diminished. The natural history of procedure is one of the most fascinating chapters in the long story of the development of mankind towards the present standard of social life.

But the subject merits a little deeper consideration. Immediately, the enforcement of law rests upon its visible sanctions, the policeman and the sheriff's officer with their appropriate methods of persuasion, and in the last resort upon the armed forces of the state. But clearly this is only the outward and visible sign of an inward and spiritual grace. To apply the language of Hume's essay on the First Principles of Government: "as force is always on the side of the governed, the governors have nothing to support them but opinion." Legal theory certainly supports this proposition. It is possible for a handful of policemen to maintain order in a large town, and for one sheriff's officer to be sufficient for a whole English county, because lawbreakers are few and the overwhelming sense of the community is against them. Were it otherwise, even if a strong and united minority were on the side of disorder, the policeman would be bound to retire in favor of the soldier, and the task of the latter would be difficult, and his influence precarious. Law has grown strong as the mass of opinion favorable to the maintenance of order has increased, until obedience to