ARGUMENT OF ELIHU ROOT. 2119 



So if a man maketh a lease, rendering a rent or a robe, the lessee shall 

 have the election causa qua supra. And with this agree the books in 

 the margent. But if I give unto you one of my horses in my stable, 

 there you shall have the election ; for you shall be the first agent by 

 taking or seisure of one of them. And if one grant to another 

 twenty loads of hazle or twenty loads of maple to be taken in his 

 wood of D., there the grantee shall have election; for he ought to do 

 the first act, scit. to fell and take the same." 



You see, Lord Coke there is referring to the rule in the transac- 

 tions of every-day life in England, and this book, and the custom- 

 ary law which it records, so entered into the life of the English 

 people, that very well-informed gentlemen like these negotiators 

 on the part of Great Britain must have known of the rule which it 

 records very well-informed gentlemen belonging to the class from 

 which Great Britain took her Chancellors of the Exchequer, like 

 Mr. Goulburn, and her Prime Ministers, like Mr. Robinson. 



THE PRESIDENT: The Court will adjourn until 2 o'clock. 



[Thereupon, at 12.5 o'clock p. m., the Tribunal took a recess until 

 2 o'clock p. m.] 



AFTERNOON SESSION, TUESDAY, AUGUST, 9, 1910, 2 P. M. 



THE PRESIDENT: Will you kindly continue, Mr. Senator Root? 



SENATOR ROOT: Before leaving the subject upon which I was 

 speaking before noon, I wish to cite another rule of construction 

 which, with acknowledgment to the Attorney-General, I will take 

 from his argument. I read from p. 5819 of the typewritten copy 

 [p. 989 supra]. Says the Attorney-General: 



" It is scarcely necessary, but I will read here just one passage from 

 Oppenheim, upon the question of interpretation, in order that I may 

 not appear to be submitting these facts as merely my own ideas, but 

 to fortify myself with the name of some authority ; though, in truth, 

 I do not think any authority is needed by the Tribunal for such a 

 proposition. 



" Oppenheim says, at page 559 : 



" ' It must be emphasized that interpretation of treaties is in the 

 first instance a matter of consent between the contracting parties. 

 If they choose a certain interpretation, no other has any basis. It is 

 only when they disagree that an interpretation based on scientific 

 grounds can ask for a hearing; and these scientific grounds can be no 

 other than those provided by jurisprudence.' 



" I read that because it is not quite the same as most municipal 

 laws. I have very little knowledge of the laws of any country except 

 my own, but I can well imagine that municipal law might provide 

 that the construction of a contract was to turn simply upon the lan- 

 guage of the contract itself; that you would not be at liberty, as of 

 course in English law you would not be at liberty, to look at all 

 these letters and this correspondence. They would all be completely 

 and absolutely excluded, and we should have to try to derive what 



