ARGUMENT OF ELIHTJ BOOT. 2115 



1279 SENATOR ROOT: No. You cannot drive your ox-team along 

 the via through a man's house ; you must not make the burden 

 unnecessarily grievous, but the discretion is in the person who does 

 the thing unless there is a limit put in the contract. 



THE PRESIDENT: In that respect is there an analogy between the 

 position of the private proprietor and the sovereign of a State in 

 dealing with such a real right? The private proprietor cannot de- 

 cide the question how the entitled may use his right because he con- 

 sults only his personal interest, whereas the sovereign of a State has 

 to consider not only his personal interest, but the interest of a large 

 community. Is the position, therefore, of the private proprietor, in 

 that respect, strictly analogous with the position of the sovereign of 

 the State? 



SENATOR ROOT : The private proprietor may have a large family. 



THE PRESIDENT: Of course, but he has only enlarged individual 

 interests. 



SENATOR ROOT: The sovereign of the State is the community, and 

 the interests of this particular kind of grant are diverse interests, as 

 I pointed out yesterday. There is no such common interest that the 

 proprietor could be deemed to be invested with a trust to be exercised 

 impartially and judicially for the benefit of both of the competing 

 classes. 



Now, under this theory of obligation, as I have said, it is agreed 

 equally as upon the theory of perpetual right, that the sovereignty 

 of Great Britain, is limited; and it remains that there can be no 

 implied reservation of the rightful exercise of the sovereign power 

 of Great Britain within the field covered by the grant, because, the 

 very essential purpose of the grant being to limit the rightful exer- 

 cise of British sovereignty as to that subject-matter, the exercise of 

 the sovereignty is excluded just so far as the grant goes, and when 

 the terms of the grant have been read no limitation can be imposed 

 upon them derived from the existence of the sovereignty, or the 

 nature of the sovereignty, which it was the purpose of the grant to 

 limit and exclude from rightful exercise. 



In this case of obligation, as in the case of real right, the terms of 

 the contract control, and those terms cannot, consistently with the 

 contract, be subjected to the exercise of any power not found in the 

 terms of the contract, or of any power which is imported into the 

 contract from the fact of the sovereignty which it was the object of 

 the contract to limit and exclude. 



In this case, as in the other, the terms of the contract assure to the 

 United States, for its inhabitants, the right in common with British 

 subjects, to take fish without expressing any limitation upon the ex- 

 ercise of that right, without expressing or suggesting any authority 

 in the grantor of the contract right to say that the right shall not be 



