ABGUMENT OF SIR WILLIAM ROBSOtf. 1715 



submitted to a particular mode of ascertaining their remedy, as well 

 as defining the interpretation. You are quite right. It is not often 

 an advocate commits the error of putting his case a little lower than 

 it may be put, but I think perhaps I did not that occasion. 



The argument which has been so prolonged, and which has cov- 

 ered such an area of ground, is really brought to a point by the ques- 

 tion put to me by Mr. Justice Gray, I think, shortly before the last 

 adjournment. He said: What is the scope of the sovereignty? I 

 have not his words before me, and Mr. Justice Gray will see whether 

 I correctly interpret the question he put: What is the scope of the 

 sovereignty that you are claiming? 



JUDGE GRAY : Pardon me. " What is the scope of the limitation 

 of the sovereignty ? " 



SIR W. EOBSON : Yes, Sir. He desired to have made a little more 

 explicit the limitation that would be put upon the exercise of the 

 sovereignty, and which of course I admit must be put upon the 

 exercise of the sovereignty. In fact, if I may interpret his language 

 for him, it would be this: How are you going to make clear to us 

 that there is not in this regulation any derogation from the grant? 

 That is a technical phrase in English and American law which I 

 think will be quite intelligible to the learned arbitrators generally. 

 A man having made a grant of a right must not, of course, so exercise 

 any privilege or power that he himself retains in a way to diminish 

 or impair or impede the effect of that grant. 



" Now," said Mr. Justice Gray, " how do you define, how do you 

 circumscribe the limitation that you admit to exist? Upon what 

 principle do you do it? What is your measure? " 



Well, now, it is perfectly clear that there must be no derogation 

 of the grant. Any power of regulation that you have reserved must 

 be exercised reasonably. But you have first of all to ascertain what 

 the grant is. I think it is some omission on the part of the United 

 States counsel thoroughly to consider that point that has given rise 

 to some little confusion here ; and, as I respectfully submit, to some 

 little fallacy in their argument. 



There is really no difficulty in ascertaining whether or not we are 

 derogating from the grant when we have found out what the grant is. 



The document was very careiul indeed to indicate exactly the limi- 

 tations upon their right, and upon our power. The more you look 

 at this treaty, although framed by laymen, and not by jurists or 

 lawyers, but just framed by ordinary men of affairs, the more clearly 

 we see how well their own common sense seems to have guided them. 

 They put in the words "in common with British subjects." Why? 

 Because those words operate as a limitation both ways. 



They say on the one hand to England: You must not exercise 

 your jurisdictional power or any powers that may be retained to 

 you in any way which operates unfairly as between American and 



