ARGUMENT OF ELIHU ROOT. 2005 



THE PRESIDENT : In this respect, the exercise of this industry would 

 be different from the exercise of any other industry in British terri- 

 tory? If American subjects exercise any other industry in British 

 territory, they are dependent upon the British laws concerning this 

 industry; and with respect to the fishing industry, they are not de- 

 pendent upon the British regulations concerning this specific in- 

 dustry ? 



SENATOR ROOT: I will show, I think with great distinctness, the 

 reason of the difference, in a very short time. There is a clear and 

 distinct line to be drawn. I indicated yesterday one element of 

 difference. 



THE PRESIDENT: The perpetual and unilateral character of the 



grant was one difference ? 



1214 SENATOR ROOT : That was the difference upon which I based 

 my submission that, for the preservation of this kind of right 

 it is necessary to have freedom from control ; while for the preserva- 

 tion of the other kind of right it is not. That is one difference ; and 

 I shall presently come to the further differences. 



It follows necessarily from what I have said regarding what the 

 right was that passed to the United States under the contract, that 

 there was in it no element of a transaction between juristic persons. 

 Upon that both parties here are fully agreed, and the statements by 

 counsel are quite unequivocal. I turn to one by the Attorney-Gen- 

 eral, who says [p. 1020] : 



" No, we did not part with the right to fish ; . . . We consented 

 not to exercise our sovereign right of exclusion against them for that 

 purpose." 



That is the Attorney-General's description of what was done. The 

 very full and frank statements by the counsel for Great Britain as 

 to the limitation upon their sovereignty, which have characterized 

 the entire argument of the case, standing upon Lord Salisbury's posi- 

 tion as to limitation upon sovereignty, are quite inconsistent with 

 the idea that this is a transaction merely between two juristic per- 

 sons ; because, of course, the mere passing of a private title is no limi- 

 tation of sovereignty at all ; absolutely none. But the subject is im- 

 portant, and it was raised by suggestions and questions from the 

 bench, and I think that perhaps I ought to assign a rational basis 

 for the agreement of counsel on both sides regarding it. 



Under the Roman law we all know the sea was free to everyone, 

 clear to the edge of the shore, and no one could acquire ownership 

 or special rights in it. When the dreadful and brutal, selfish period 

 of the Middle Ages came in Europe, and the advanced juristic learn- 

 ing of Rome was in a great measure forgotten, the different sover- 

 eigns reached out for general control over as great a part of the sea 



