2118 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



pathway you reach your conclusion, because I am so optimistic as to 

 believe that this great empire of Britain will continue so long as cod- 

 fish swim around the shores of Newfoundland, and that never, dur- 

 ing all these long ages, will there be another war between Great 

 Britain and the United States. 



When I made a statement regarding the Roman Law to the effect 

 that if a man grants an iter or a via over his land to another, the 

 discretion to determine where to lay out the iter or the via was in the 

 person to whom it was granted, I think there were some symptoms 

 of doubt or dissent 



SIR CHARLES FITZPATRICK : Yes, I think you can attribute that to 

 me; I will take the responsibility for that. 



SENATOR ROOT: My own authority as a civilian, is too little to let 

 that statement stand by itself, and I beg to cite as authority a section 

 of the Digest of Justinian from Mr. Munro's translation. The work 

 was produced at Cambridge by a Fellow of Gonville and Cains Col- 

 lege, Cambridge, and published in 1909, second volume, 65th page, 

 9th paragraph of the first title of the book. Digest 5 : 



1281 " If a via over anyone's land is conveyed or bequeathed to a 

 man without more," [a note says the Latin word here is " sim- 

 pliciter." If a via over anyone's land is conveyed or bequeathed to 

 a man " simpliciter "] " he will be at liberty to walk or drive with- 

 out restriction, that is to say over any part of the land that he likes; 

 only, however, in a reasonable way, as the language which people 

 use is always subject to some tacit reservation. The party cannot be 

 allowed to walk or drive through the house itself, or straight across 

 the vineyards, when he might have gone some other way with equal 

 convenience and with less damage to the servient land." 



You will see that sustains the same proposition which is stated in 

 section of the Code Civil of 1804 to which I referred as elucidating 

 Mr. Gallatin's reference to the French civilians. 



And there is another authority running along a cognate line of con- 

 tract which was so great an authority at the time when this treaty of 

 1818 was made, that I think it may be interesing for the Tribunal to 

 have it. 



It is in Hargrave & Butler's " Coke upon Lyttleton." 



In 1818, this was a book of very great authority. It had been 

 published and republished in many editions, and this particular book 

 which I read is an American edition published in Philadelphia in 

 1827, from the last London edition which was published in 1818, the 

 very year of the negotiation of the treaty. Lord Coke says: 



" Fourthly, in case an election be given of two several things, always 

 he which is the first agent, and which ought to do the first act, sh;ill 

 have the election. As if a man granteth a rent of twenty shillings, or 

 a robe to one of his heirs, the grantor shall have the election : for he 

 is the first agent, by the payment of the one, or delivery of the other. 



