ARGUMENT OF- MR. ROOT 225 



to Newfoundland the right of regulating the time and manner of 

 prosecuting the fisheries, had reference to the time for the prose- 

 cution of the herring fishery on the west coast of Newfoundland, 

 and was merely intended to place citizens of the United States on 

 the same footing with Her Majesty's subjects in that particular, 

 so that the same rules and regulations imposed upon Newfoundland 

 fishermen with regard to that fishery might also be observed by 

 American fishermen. 



The expression of Lord SaUsbury, another great Secretary of 

 State for Foreign Affairs, appears in the United States Case Appen- 

 dix at p. 684, in his often-quoted letter of the 3rd April, 1880, where 

 he bases his argument for the rejection of the American claim for 

 damages upon this proposition as to the treaty of 1818 and the 

 treaty of 187 1. I read his words: 



"Thus whilst absolute freedom in the matter of fishing in territorial 

 waters is granted, the right to use the shore for four specified purposes alone 

 is mentioned in the treaty articles." 



"The right of an independent nation to use the territory of 

 Great Britain at its discretion," "the unUmited right of fishing," 

 "absolute freedom in the matter of fishing." Those are the words 

 of three great British Secretaries of State for Foreign Affairs, used 

 in describing the American right for the purpose of passing upon the 

 character of the right, and stating the position that Great Britain 

 was taking in controversies with the United States. 



And those descriptions of the character of the American right 

 are in consonance with the rules of construction that obtain in 

 England and America, and I behave obtain throughout the civilized 

 world, for it is the law, and it was then the law, that where by 

 grant or by deed or contract a right is given by one to another to 

 do a thing which involves the exercise of discretion as to time when 

 and manner in which it shall be done, and there is silence as to who 

 shall exercise the discretion, the discretion is vested in the person 

 who has to do the thing. And this is the law of England and the 

 law of America and, while I speak with the greatest diffidence in 

 the presence of gentlemen who have wide experience of the systems 

 of law under which I have not lived, I beheve it to be the universal 

 law, for it was the law of Rome. The grant of an iter or a via under 



