ARGUMENT OF ELIHU ROOT. 1939 



ercise of the right, without consulting the grantee whose rights were 

 to be affected? 



I have said, in stating this question, that it was whether the line 

 was to be drawn upon the uncontrolled judgment of the grantor, 

 either upon what would be a proper exercise of the grantor's sover- 

 eignty over the British Empire, or upon what would be 

 1174 reasonable towards the grantee, as coming under both heads, 

 both branches, in both aspects, under the category of uncon- 

 trolled judgment. 



It seems that no argument is necessary to sustain that. 



I must, however, revert to the statement of the British contention, 

 which appears to impose upon Great Britain in express terms the 

 limitation of reasonableness. 



That certainly does impose a limitation. And the limitation is 

 the limitation of what is reasonable. It is, what is reasonable, what is 

 appropriate or necessary for the protection and preservation of the 

 fishery, what is desirable on grounds of public order and morals, 

 what is equitable and fair as between local fishermen and the in- 

 habitants of the United States, and so on. And so Sir Robert Fin- 

 lay, in his 'most comprehensive and able argument, assumed it to be, 

 at one point in the argument ; for he says " it never has for one 

 moment been contended by Great Britain that regulations of the 

 kind indicated there giving a preference to British fishermen as 

 against fishermen of the United States would be defensible. The 

 liberty given by the treaty cannot be taken away by regulation, and 

 Great Britain could not so contend; Great Britain never contended 

 that regulations might be framed which would put the natives of the 

 dominion concerned in a better position than the United States fish- 

 ermen who have been admitted to share in the benefits of the fishery." 



But, when the counsel for Great Britain are confronted by the 

 manifest unfairness of having a right vested in us which cannot be 

 affected or modified by any legislation or regulation on the part of 

 the grantor of the right which is not reasonable, fair, appropriate, and 

 necessary, and at the same time arrogating to the grantor the right 

 itself alone to determine what is reasonable, fair, appropriate, and 

 necessary, he seeks refuge from the consequence by the proposition 

 which I will now read from the copy of his argument at p. 176 : 



" It is not claimed for the British Government, or for the Colonial 

 Governments, that they can determine the question whether any 

 regulation is reasonable. All that they claim is the right to make 

 reasonable regulations, and if the point is raised as to whether any 

 regulation is reasonable or not. it is not for the Colonial Govern- 

 ment, it is not for the British Government, it is not for the United 

 States Government to determine whether that regulation is or is not 

 reasonable. It is for this Tribunal, to which the parties can, if such 

 a difference arises, come." 



