ARGUMENT OF ELIHU ROOT. 2015 



of the sovereign making the grant. That is the proposition I make. 



Xow, a further proposition upon which we are all agreed is that 

 this grant did limit British sovereignty. That is agreed by counsel 

 on both sides, and I suppose I need not spend any time over it. 

 Originally, Great Britain had the right to reserve to her own sub- 

 jects the exclusive use of that portion of the earth's surface which 

 we call the treaty coast for fishing purposes. She had the right to 

 exclude all other persons from it. She had the right to dispose freely 

 as sovereign of the opportunity for the entire use among her own 

 subjects, to condition its exercise, and to say that they shall do so 

 and so, that these may go there, and that those may not. She had the 

 right to admit such aliens as she saw fit to the beneficial use. She 

 had the right to say to the people of Massachusetts : You may come 

 here and fish, and to the people of Maine and New Hampshire : You 

 may not, or that the people of New York may go and fish and the 

 people of Massachusetts may not. But when she made the grant 

 she parted to a material extent with the power to do those acts of 

 sovereignty. She could no longer exclude this great class of 

 1220 men who are described as " inhabitants of the United States." 

 It rested with the United States to exclude them, or to pro- 

 hibit them from entering that territory and fishing. She could no 

 longer say to one: You may go, and to another, you may not. She 

 could no longer dispose of the entire opportunity for fishing, as she 

 had been able to do before. 



Now, these are limitations upon the sovereign powers of Great 

 Britain, and, while not extensive or alarming, or a matter of practical 

 disturbance of British sovereignty, the United States, in condition- 

 ing her own inhabitants, saying: You may be admitted, and you 

 not, those who comply with the conditions may be admitted, and 

 others not, were entitled to exercise the same right of sovereignty 

 which Great Britain had theretofore been able to exercise, and had 

 exercised. So, sovereignty was limited. 



Now, there cannot be an implied reservation in the grant of the 

 very thing that the grant excludes; that is to say, that when the 

 grant limited British sovereignty it excluded British sovereignty 

 from the field of operation commensurate with the right granted 

 according to its terms. It is not an exact use of words to call it an 

 implied reservation. There cannot be any reservation implied of a 

 right which the essential quality of the grant is to exclude. There 

 is a limit to the grant, and beyond that limit sovereignty remains 

 intact, unimpaired, and you must go to the grant to find what the 

 limit is. If you find a limit in the grant there can be no implied 

 reservation within it of any sovereign right, for to the extent of its 

 limits the grant must limit the sovereignty, or the sovereignty must 

 limit the grant. They cannot both limit each other. One must be 



