2110 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



men with regard to that fishery might also be observed by American 



fishermen. 

 1276 The expression of Lord Salisbury, another great Secretary 



of State for Foreign Affairs, appears in the United States 

 Case Appendix at p. 684, in his often-quoted letter of the 3rd April, 

 1880, where he bases his argument for the rejection of the American 

 claim for damages upon this proposition as to the treaty of 1818 and 

 the treaty of 1871. I read his words : 



"Thus whilst absolute freedom in the matter of fishing in terri- 

 torial waters is granted, the right to use the shore for four specified 

 purposes alone is mentioned in the treaty articles." 



" The right of an independent nation to use the territory of Great 

 Britain at its discretion," " the unlimited right of fishing," " absolute 

 freedom in the matter of fishing." Those are the words of three 

 great British Secretaries of State for Foreign Affairs, used in de- 

 scribing the American right for the purpose of passing upon the 

 Character of the right, and stating the position that Great Britain 

 was taking in controversies with the United States. 



And, those descriptions of the character of the American right are 

 in consonance with the rules of construction that obtain in England 

 and America, and I believe obtain throughout the civilised world, 

 for it is the law, and it was then the law, that where by grant, or by 

 deed or contract, a right is given by one to another to do a thing 

 which involves the exercise of discretion as to time, when, and manner 

 in which it shall be done, and there is silence as to who shall exercise 

 the discretion, the discretion is vested in the person who has to do the 

 thing. And that is the law of England, and the law of America, 

 and, while I speak with the greatest diffidence in the presence of 

 gentlemen who have wide experience of the systems of law under 

 which I have not lived, I believe it to be the universal law. for it 

 was the law of Rome. The grant of an iter or a via under the Roman 

 law gave to the grantee the right to say where he should lay out his 

 path or his road; subject always to the rule of common sense, that 

 he must not exercise his discretion in a way unnecessarily and bur- 

 densomely to injure. 



These great and authorised representatives of Groat Britain were 

 without question applying to the construction of this grant the ordi- 

 nary and natural rule of construction. They might well have added, 

 and to support the view they took, the view the British Govern- 

 ment took for sixty-two years after this treaty was made, the view 

 the makers of the treaty took, and we may add another principle 

 of construction which is binding upon us; that we must construe 

 the grant of a deed or a contract in such a way as to make it effec- 

 tive, and we are not at liberty to construe it in such a way as to 

 destroy the grant; and, to construe this grant now upon this new 



