2028 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



it is necessary for a nation, for its own self-respect, for the preserva- 

 tion of its standing among the nations of the earth, for the preser- 

 vation of its own interests, for the continuance of those relations of 

 intercourse, of trade, which are necessary to its existence in the 

 family of nations, to give a reason for such an exception. The whole 

 burden of proof has changed. Instead of giving a reason for admit- 

 ting, if we exclude now we must give reasons for the exclusion. The 

 strict right of exclusion remains, but it is a right that no nation can 

 justify itself in exercising unless it has a specific reason. And the 

 necessity of expressing a reservation of the right of municipal control 

 over the privilege which is thus exercised freely by all the people of 

 the earth, when an expression of the imperfect right of intercourse 

 is put into a treaty, in my judgment no longer exists; but it did exist 

 in 1818, because this general principle of free and universal inter- 

 course and trade had not then reached its development; and it was 

 through the rule, it was through the great range and practically 

 universal custom of putting into treaties granting such rights, the 

 express reservation of the right of municipal control that this general 

 rule of intercourse among States grew up, and the people of the 

 world became accustomed to it ; and the custom, with all its incidents, 

 grew out of this great range of conventions. 



THE PRESIDENT: Could it not be said, Mr. Senator Root, that the 

 very general recurrence of a disposition like this one I have myself 

 looked over these treaties of this period, and I have found none which 

 does not contain a similar disposition is rather the enactment of a 

 recognised rule or a recognised principle of international law than 

 the establishment of a new principle. Is not that one of the ways in 

 which international law is developed that generally recognised 

 principles are put into treaties, are enacted in the written disposi- 

 tions of treaties? 



SENATOR ROOT: Certainly. 



THE PRESIDENT: Was not that, perhaps one of these developments 

 of international law, that the principle which was already recognised 

 became expressed now in treaties ? 



SENATOR ROOT: I should put it rather the other way. That the 



general recognition of the principle followed the practice dictated 



by convenience of including the provision in the treaties, than that 



the treaties arose from the recognition of the practice; because I do 



not think that the practice existed at the time when the series of 



treaties began to put the provision in. I think the world had 



1228 not yet passed out of the period of isolation into the period of 



commercial free intercourse at that time. And I should say 



that the practice which we now enjoy was rather the result of the 



gradual adoption of the rule and putting it into this great number of 



