ARGUMENT OF SIR WILLIAM ROBSON. 1691 



THE PRESIDENT: I would call your attention to the celebrated pas- 

 sage in Mr. Root's letter of the 13th June, 1906, p. 982 of the United 

 States Case Appendix, which has been so often quoted : 



" It is conceded that this right is, and for ever must be, superior 

 to any inconsistent exercise of sovereignty within that territory." 



This right, superior to the exercise of sovereignty, bears two con- 

 structions, does it not? It bears first the interpretation of a limita- 

 tion, and it is prehaps reconcilable with the more comprehensive 

 interpretation of a share in the sovereignty ? 



SIR W. ROBSON : Yes, but still there can be no doubt as to what the 

 meaning of the United States is in the end, because it is asking for, 

 and it must have, if it is to succeed, such a sovereignty as carries with 

 it the right of regulation. It must have sovereignty for itself. It 

 does not get that by the construction of the treaty, which only limits 

 the exercise of our own sovereignty. 



SIR CHARLES FITZPATRICK : The right of regulation involves neces- 

 sarily the right of legislation ? 



SIR W. ROBSON : The right to legislate ; so that it is demanding not 

 merely the right to compel us to legislate in a particular way, but it 

 is demanding the right to legislate itself and to enforce by executive 

 acts that right of legislation. 



JUDGE GRAY: I only want to suggest and the suggestion comes 

 from what has been said by the President that if a right is clearly 

 defined and admitted of one nation, or the inhabitants of one nation, 

 in the territories of another, that right is in that sense superior to 

 any exercise of sovereignty inconsistent with the right? 



SIR W. ROBSON : Oh, certainly. 



JUDGE GRAY: It is a limitation? 



SIR W. ROBSON: Certainly. In other words, if I might put the 

 observation of Mr. Justice Gray in the form of a legal proposi- 

 1023 tion, Great Britain must do nothing that derogates from her 

 own grant, just exactly as a man, having made a contract, 

 must act in relation to that contract so as not to interfere with 

 the legal legitimate expectations of the other contracting party 

 founded on the contract. He must keep his contract, and we must 

 in fact, it is a plain phrase that everybody would understand keep 

 our bargain. So, to say, in the more juristic phrase, we must not 

 derogate fronj our grant. That is what Mr. Justice Gray points out 

 as our obligation, and, of course, it is one that we have always ad- 

 mitted. 



What, therefore, is the measure of our obligation? It is that, 

 if we regulate, we must do it reasonably. To that extent we have 

 limited our sovereignty. In the absence of obligation we are not 

 bound to be reasonable at all. We might be as unreasonable in regu- 



