2114 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. 



sary, and proper for the regulation of the common right. But so 

 long as no war has intervened to put an end to this right, so long as 

 no change of sovereignty has come, while Great Britain is sovereign, 

 the parties stand as they stood when the treaty was made, and you 

 reach the same practical result, with the exception of the distinction 

 which I have just made. 



SIR CHARLES FITZPATRICK. The difficulty, Mr. Root, with regard to 

 assent is that I cannot understand how, constitutionally, the assent 

 of the Government of the United States could give effect to British 

 legislation. As to your second proposition, I think there is a groat 

 deal to be said in favour of it, at all events ; but as to the other ques- 

 tion, I do not quite understand how your assent could give effect to 

 British legislation. I think your theory would drive you necessarily 

 to the conclusion that if the United States were to exercise its right, 

 on the assumption that sovereignty had been parted with, yon would 

 be the sole arbiter, the sole judge of the action of your own citizens 

 with respect to the exercise of the treaty right in British waters. I 

 think that is the logical conclusion, and in the Constitution of the 

 United States you might find some difficulties. 



SENATOR ROOT: I see that very probably there will be constitu- 

 tional difficulties, but we have to treat this case upon the theory that 

 this treaty is a valid treaty, and that it is constitutionally valid. 



SIR CHARLES FITZPATRICK: It is not as to the constitutional val- 

 idity of the treaty, but it is as to the constitutional exercise of your 

 assent. 



SENATOR ROOT : Perhaps I do not quite catch your meaning. 



SIR CHARLES FITZPATRICK : However, I do not think it is very im- 

 portant, in view of your second position. In view of your second 

 position, I do not think we need trouble ourselves about assent. 



SENATOR ROOT: The practical result you reach now would be the 

 same, although you would reach it by a little different process of 

 reasoning. I do not think we need trouble ourselves where this iter 

 or via goes. 



SIR CHARLES FITZPATRICK: Except that the iter and viator must go 

 where the grantor stipulates with all due deference. 



SENATOR ROOT: They must go to a point, if a point is prescribed. 

 They must go where the grantor stipulates, if the grantor settles it 

 in the grant. They must go where the contract provides, if the 

 contractor settles it in the contract. 



SIR CHARLES FITZPATRICK : Yes. 



SENATOR ROOT: If he does not say anything about it, then they 

 must go where the person who is to do the going settles it in the 

 exercise of his discretion. 



SIR CHARLES FITZPATRICK : And it is not to be settled by the per- 

 son who is to suffer the burden? 



