2112 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



of sovereignty. But that position, while, in the judgment of counsel 

 for the United States, it is a true and sound position, is not necessary 

 to reach the result with which the Tribunal has to deal now and 

 here. So long as the contract exists, whether it be a real right that is 

 created or an obligation, as I have already observed incidentally, the 

 Tribunal must treat it as binding, and enforce the limitations which 

 it imposes upon the exercise of the sovereignty of Great Britain. 



There is this difference between the results which would follow 

 from treating this right that passed to the United States by the 

 ratification of the treaty of 1818 as a real right, on the one hand, and 

 treating it as an obligation in terms perpetual on the part of Great 

 Britain, on the other hand. The first difference in the nature of 

 the right is that in the first view the treaty would be deemed to take 

 out from Great Britain a fragment of her sovereignty itself, and 

 from that it would follow as a logical conclusion that Great Britain 

 could not order, regulate, control, limit, or restrict the right that 

 had passed to us because it was not hers. 



SIR CHARLES FITZPATRICK : The property had passed from her ? 



SENATOR ROOT: It had passed. She had no more right to do that 

 than one would have the right to continue ordering any piece of 

 property that he had conveyed away. On the other hand, if this is 

 to be regarded as not creating a real right, but as creating an obli- 

 gation, Great Britain is prevented from exercising control, limitation, 

 or restriction over the right which passed by her obligation, and 

 therefore the obligation is such that it excludes her from doing that 

 thing. We are all agreed that the contract, whether creating a real 

 or an obligatory right, did limit British sovereignty. Great Britain, 

 by her Attorney-General, quotes the words of Lord Salisbury, in 

 which he says that: 



"British sovereignty, as regards those waters, is limited in its 

 scope by the engagements of the Treaty of Washington, which can 

 not be modified or affected by any municipal legislation." 



And the Attorney-General says: 



" That is the position we take to-day." 



He further says: 



" I cannot anticipate that with regard to these principles any 

 difference will be found to exist between the views of the two Gov- 

 ernments." 



The Attorney-General says further in his argument that : 



" The right of exclusion is a sovereign right, and that right is lim- 

 ited, in fact quoad particular persons it is abandoned; I limit my 

 sovereignty to the extent of saying I will not exclude you. 



" JUDGE GRAY : Then it becomes, in that view of it, confining your- 

 self to what you have just said, a question of the extent of the limita- 

 tion upon sovereign power? 



