ARGUMENT OF MR. ROOT iii 



Senator Root: That is undoubtedly true. The words of the 

 treaty must be construed according to what is found to be their 

 true meaning, and giving effect to all the words which are of conse- 

 quence or of importance in the treaty. Of course, you have to find 

 there an exclusion of sovereignty in the grant reasonably construed. 

 The terms of the grant are general and without any Hmit except 

 the limit of territory, and the limit carried by the fact that the 

 rights are in common. The grant carries the right, to be held in 

 common with British subjects, to take fish of every kind within 

 this territory, and there is in it no power on the part of anyone to 

 say that the right shall not be exercised except where I choose that 

 it shall be exercised, when I choose that it shall be exercised, or in 

 the way that I choose it shall be exercised. That is the grant, and 

 to that extent it excludes, pushes back the power of British sover- 

 eignty. Within that extent there can be no imphed reservation. 

 It rests with whoever claims to find in the terms of the grant author- 

 ity on the part of the grantor to say to the grantee, You shall not 

 do this except when I say, or as I say, or where I say, to show reason 

 for it, to show groxmd for it. 



Now, I will ask you to consider some of the grounds of such a 

 claim which are presented. One of them, and one which has been 

 pressed somewhat, is that there is an implication from the fact that 

 the liberty is a hberty in common with British subjects. It is 

 claimed by Great Britain that from that fact results a right of 

 Great Britain to say that the citizens of the United States are to be 

 subject to the same legislative control as the citizens of Great 

 Britain. We must discriminate a Httle now. The personal conduct, 

 of course, of the Americans who go upon the treaty coast is subject 

 to the same control, but that is the result, not of the fact that the 

 right which they go there to exercise is a right in common, but of 

 the fact that they are in British territory; and the great field of 

 control by Great Britain results not from the common quality 

 of the right which they go there to exercise, but from the fact that 

 they are there within British jurisdiction. In the next place, it 

 should be observed, that it is the right that the inhabitants of the 

 United States are to have in common; it is not that it is to be 

 exercised in common with British subjects. As Chief Justice Fitz- 

 patrick observed yesterday in regard to the terms of the treaty of 



