ARGUMENT OF MR. ROOT 



227 



Did anyone ever hear of appl)dng such a rule to the powers of 

 ownership ? If an owner of land grant to another the right to make 

 use of the land to the extent of the use granted, he excludes the 

 exercise of his powers of ownership. Did anyone ever hear of a 

 claim that he could regulate, modify, or restrict the exercise of the 

 right granted because he was the owner ? He may think it is for 

 the common benefit that the right that he has granted may be 

 restricted and modified; but did anyone ever hear that because 

 he was the owner he alone was entitled to judge ? Common sense 

 says that when a nation grants to another nation a right to be 

 exercised in its territory the grant puts a limitation upon the sov- 

 ereignty, which limitation goes as far as the grant does, and there 

 is no room within the limit of the grant for an implication arising 

 from the fact of sovereignty. 



Now, I have argued Question No. i in the main upon the 

 proposition that the grant of the treaty of 1818, being a grant to an 

 independent nation, there was, by the controlling, or one of the 

 controllmg, features of the grant, carried into it by the use of the 

 word "forever," the conveyance of a real right. I have argued that 

 the Tribunal was bound to give effect to that dominant feature of 

 the grant, and could give effect to it only by treating it as a real 

 right, because mere obligatory rights end with war and end with a 

 change of sovereignty. But that position, while, in the judgment of 

 counsel for the United States, it is a true and sound position, is not 

 necessary to reach the result with which the Tribunal has to deal 

 now and here. So long as the contract exists, whether it be a real 

 right that is created or an obligation, as I have already observed 

 incidentally, the Tribunal must treat it as binding and enforce the 

 limitations which it imposes upon the exercise of the sovereignty 

 of Great Britain. 



There is this difference between the results which would follow 

 from treating this right that passed to the United States by the 

 ratification of the treaty of 1818 as a real right, on the one hand, 

 and treating it as an obligation in terms perpetual on the part of 

 Great Britain on the other hand. The first difference in the 

 nature of the right is that in the first view the treaty would be 

 deemed to take out from Great Britain a fragment of her sovereignty 

 itself, and from that it would follow as a logical conclusion that 



