ARGUMENT OF MR. ROOT 109 



nation. That is just as Lord Bathurst described it. It is in the 

 nature of an international, real right; it is a, jus in re aliena. We 

 have here another reason why this should not be regarded as a 

 mere municipal right or a transaction between two juristiic per- 

 sons, because that has none of the elements of indestructibihty. 

 One of the essential qualities of this grant, and one which can- 

 not be denied to it without violence to the terms of the grant, 

 is that it is removed from the exercise of the powers of sov- 

 ereignty of Great Britain, put beyond the exercise of that 

 power, and is vested alone in the sovereign to, which the grant 

 was made. The sovereignty to which the grant was made, exer- 

 cising its sovereign right, its sovereign control over its own right, 

 not going beyond it, not arrogating to itself the right to inter- 

 fere with British jurisdiction, or with the British exercise of a 

 common right, but arrogating to itself the right to control its own 

 inhabitants, to condition the right to them, is exercising that 

 which is the right of the sovereign to which it is granted, and not 

 the right of the sovereign making the grant. That is the proposi- 

 tion I make. 



Now, a further proposition upon which we are all agreed is that 

 this grant did hmit British sovereignty. That is agreed by counsel 

 on both sides, and I suppose I need not spend any time over it. 

 Originally, Great Britain had the right to reserve to her own subjects 

 the exclusive use of that portion of the earth's surface which we 

 call the treaty coast for fishing purposes. She had the right to 

 exclude all other persons from it. She had the right to dispose 

 freely as sovereign of the opportunity for the entire use among her 

 own subjects, to condition its exercise, and to say that they shall 

 do so and so, that these may go there and that those may not. 

 She had the right to admit such ahens as she saw fit to the benefi- 

 cial use. She had the right to say to the people of Massachusetts, 

 You may come here and fish, and to the people of Maine and New 

 Hampshire, You may not ; or that the people of New York may go 

 and fish and the people of Massachusetts may not. But when she 

 made the grant she parted to a material extent with the power to 

 do those acts of sovereignty. She could no longer exclude this 

 great class of men who are described as "inhabitants of the United 

 States." It rested with the United States to exlcude them or to 



