ARGUMENT OF MR. ROOT 233 



perpetual, would, in the ordinary course of human affairs, ulti- 

 mately lead to the desire coupled with the power to destroy the 

 value of the grant. 



We are precluded from considering that the right vested in the 

 grantee by the contract is to be treated by the grantor as being of 

 a lower degree of sanctity and inviolability than the common right 

 declared by the contract to remain in the subjects of the grantor. 



We are precluded from considering that it was the intention of 

 the parties that the common right of the grantee should be subject 

 in its exercise to the control of the grantor, while the equal common 

 right of the grantor was not to be subject to control by the grantee. 



In this case, as in the other, the principle of equality of right 

 resting upon the contract remains as inviolable as the principle of 

 equality of right resting upon the ownership of a right by an inde- 

 pendent nation to which it has been conveyed, according to the 

 American view. 



There is no principle of law or reason which justifies one party to 

 a contract in hmiting or modifying the exercise of the other party 

 to the contract in accordance with the first party's own judgment 

 as to what is for the common interest irrespective of the judgment 

 of the other party to the contract. There is no warrant for assuming 

 in this case, more than in the other, that in the absence of express 

 provision in the contract the parties intended that one party to the 

 contract should exercise such a power over the rights of the other 

 party. 



When Great Britain concedes, as she does in the statement of 

 Question i , that regulations of the common right must be reasonable, 

 necessary, fair, etc., she concedes a limitation upon her sovereignty 

 which precludes the exercise of her sole judgment to impose restric- 

 tions in her sole will. When Great Britain argues, as she does here, 

 that there was an impHed reservation of the sovereignty which 

 enables, justifies, or authorizes her to be the sole judge of what is 

 reasonable, necessary, and fair, she reinstates in her conception of 

 her rights the very principle that she abjured when she put into the 

 statement of her contention in Question i the principle of reason- 

 ableness, necessity, and fairness. She is not at Hberty to abjure it. 

 She has precluded herself from it by the contention of Question 1, 

 which puts the test of reasonableness, fairness, and necessity into 



