ARGUMENT OF ELIHU ROOT. 2111 



and latter-day theory, to construe this grant in such a way as to 

 reverse the ordinary application of the canon of construction, and 

 to carry the discretion, not to the person who has to do the act, but 

 to the person who has granted the right to do the act, and make the 

 exercise of the right subject to the power of the grantor of the right 

 in its uncontrolled judgment, to limit and restrain, is making it bear 

 in its own breast the seeds of its own destruction. 



We may add to the support of the British position in all that long 

 period before the pressure of the Newfoundland trader began to 

 warp the expression and the action of British statesmen we may 

 add in support of that earlier position the rule that the words of a 

 grant by deed or contract are to be construed in the sense in which 

 the grantor had reason to believe the grantee understood them, a 

 rule of morality, a rule of good faith and honour ; and here, without 

 contradiction, is the evidence as to how the grantee of 1818 under- 

 stood this grant in the statement of Mr. Gallatin, which stated that 

 the right was regarded as what the French civilians call a servitude. 



When we attempt to read into this grant, contrary to the accepted 

 principles of construction, contrary to the construction of the makers 

 and the construction of the two countries, a right of the grantor to 

 modify and change, to what do we appeal ? To nothing but the fact 

 that Great Britain is sovereign there, and that from the fact of sov- 

 ereignty must be implied the right to control. 



Did anyone ever hear of applying such a rule to the powers of 

 ownership ? If an owner of land grant to another the right to make 

 use of the land to the extent of the use granted, he excludes the 

 exercise of his powers of ownership. Did anyone ever hear of a 

 claim that he could regulate, modify, or restrict the exercise of the 

 right granted because he was the owner? He may think it is for 

 the common benefit that the right that he has granted may be re- 

 stricted and modified ; but did anyone ever hear that because he was 

 the owner he alone was entitled to judge ? Common sense says that 

 when a nation grants to another nation a right to be exercised in its 

 territory the grant puts a limitation upon the sovereignty, which 

 limitation goes as far as the grant does, and there is no room within 

 the limit of the grant for an implication arising from the fact of 



sovereignty. 



1277 Now, I have argued Question No. 1 in the main upon the 

 proposition that the grant of the treaty of 1818, being a grant 

 to an independent nation, there was, by the controlling, or one of the 

 controlling, features of the grant, carried into it by the use of the 

 word " forever," the conveyance of a real right. I have argued that 

 the Tribunal was bound to give effect to that dominant feature of 

 the grant, and could give effect to it only by treating it as a real right, 

 because mere obligatory rights end with war and end with a change 



