ARGUMENT OF ELIHU ROOT. 2073 



So these negotiators did not merely refrain from imposing upon 

 the grant of right to have the inhabitants of the United States enter 

 this territory, and exercise the liberty of taking fish, those restric- 

 tions which they themselves put upon the ordinary rights of trade 

 and travel and residence in the treaty which they reproduced in the 

 fourth article of this convention of 1818 they did not merely refrain 

 from attaching to this grant the reservation of the right of municipal 

 legislation which they attached to that grant, but as to the two of the 

 three branches of the rights they granted, they dealt with the subject 

 of restriction. As to one they included an express restriction; as 

 to the other they included an express reservation of the power of 

 future restriction, limited to a specific purpose. 



Now, what must be the inference ? Why is it ? . I put the question 

 with great earnestness to your Honours. Why is it that these nego- 

 tiators treated the two different kinds of rights, the kind of right 

 which was described in the treaty of 1815 that they reproduce in 

 article 4, and the kind of right which was the subject of this specific 

 grant so differently? 



Let me answer first, narrowly, out of the mouths of the men who 

 were concerned in the transaction, and then I will answer broadly 

 according to my general view of the underlying basis of the different 

 treatment. 



First, the narrow answer, from the report of Mr. Gallatin, British 

 Case Appendix, p. 97. He is reporting to Mr. Adams, his Secretary 

 of State at home, the reason why Great Britain was unwilling to 

 continue the broad grant of 1783, and insisting upon the narrow limi- 

 tations which were finally imposed upon the extent to which the 

 renewal of the grant should apply. And he says, just below the 

 middle of p. 97 : 



" That right of taking and drying fish in harbours within the ex- 

 clusive jurisdiction of Great Britain, particularly on coasts now in- 

 habited, was extremely obnoxious to her, and was considered as what 

 the French civilians call a servitude." 



It is appropriate to consider here what it was that the French 

 civilians called a "servitude," and I refer you to Code Civile of 

 France of 1804:. that had been in force for fourteen years before the 

 making of the treaty of 1818. That code, in article 637, says : 



"A servitude is a burden imposed upon an estate for the use and 

 utility of an estate belonging to another owner." 



Article 686 : 



"It is permitted to owners to establish on their property or in 



favour of their property such servitudes as appear to them proper, 



provided, nevertheless, that the use established shall not be imposed 



either upon a person nor in favor of a person, but only upon an 



92909 S. Doc. 870, 61-3, vol 11 32 



