2026 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



It is plain to see where the idea originated that trade and travel 

 rights are to be exercised subject to the municipal right of regula- 

 tion and control; because it was the general practice of the world, 

 in the treaties that granted these rights, during this formative period 

 of the new regime of international intercourse and trade ; it was the 

 general practice to include in the treaties that limited the sovereign 

 right of exclusion express provision for the application of the laws 

 of the country that had limited its right of exclusion. 



There are some treaties, a very small number, coming within these 

 limits which had already begun to follow the modern practice, in- 

 stead of making an express reservation, of establishing a standard 

 by reference to the rights and privileges of the citizens of the state, 

 or the most fovoured nation. But the Tribunal will see that equally 

 establishes a standard. The exercise of the right of the foreigner 

 who comes in is to be measured by the exercise of the right by the 

 citizen, or by the citizen of the most favoured nation; and nothing 

 in the way of law or regulation affecting the exercise of his right 

 can be objected to by him which is not in contravention of the stand- 

 ard of regulation of citizens, or the standard of regulation or control 

 which is applied to the most favoured nation ; and that is the common 

 practice now, to put these treaty rights on the most favoured nation 

 basis. And I venture to say that if the Attorney-General will look 

 over again these hundreds of treaties, he will find that to be the 

 case. If he goes back to this period regarding which we are treat- 

 ing, he will find the origin of the idea in express reservations, and 

 coming down he will find the general rule, the establishment of a 

 standard of treatment. 



THE PRESIDENT: May I ask, Mr. Senator Root, if this disposition 

 were not inserted, would the citizens of both parties have been exter- 

 ritorial? Was it the practice before the conclusion of these treaties 

 that a citizen of one state, say of one European state who comes to 

 any other European state, or a citizen of the United States who comes 

 to one of the European states, was exterritorial? Was it necessary 

 to exclude exterritoriality by a specific provision? 



SENATOR ROOT: Not so far as the application of the ordinary juris- 

 diction was concerned, but so far as the treatment of the very right 

 which he was exercising in the period concerning which we are deal- 

 ing, it would have been, because there had not then developed what 

 has been developed now, a universal recognition of a right^-an 

 imperfect right, to be sure ; a right subject to the power of exception 

 and withdrawal but a universal right on the part of all mankind 

 to free intercourse, travel, and trade. The growth of the principle 

 of free intercourse and universal trade is a thing of recent years; 

 and now there are two things to be considered regarding the exercise 

 of such rights, though incorporated in a treaty. One is that the 



