ARGUMENT OF ELIHU ROOT. 2121 



to give in the international law of the past two centuries a wide 

 field of accepted rules, following upon thorough consideration. We 

 cannot ignore this; but it is not my purpose to weary the Tribunal 

 by going over the subject which was so learnedly and clearly pre- 

 sented by Senator Turner. The Tribunal has the authorities which 

 he presented, the exposition of the international law relating to rights 

 belonging to this class, and I shall not trouble the members of the 

 Tribunal further with them. Yet I cannot ignore it, because the 

 Tribunal cannot ignore it. A great international Tribunal owes a 

 duty not merely to the parties, but, if we are ever to have a system of 

 international law which justifies the existence of a great Permanent 

 Court, a Tribunal like this owes a duty to mankind, a duty to the 

 nations, in reaching such a conclusion regarding such a matter as is 

 presented here as shall tend not to break down, to disintegrate, but 

 to build up, to perfect, to strengthen a system of settled and accepted 

 rules which shall furnish a guide to such a Permanent Court in 

 applying principles and rules of law to the peaceful settlement of 

 international disputes. 



So I do not feel at liberty to pass the subject by, to close my dis- 

 cussion of the first question submitted, without making some observa- 

 tions regarding the application of the conclusions reached and the 

 evidence presented by the writers who are cited by Senator Turner, 

 and the relation of those conclusions to the evidence and the question 

 which is here. 



The effect of a rule of international law, if such a rule there be, 

 which may be relevant in any degree to the consideration of a treaty 

 between two independent nations is rather that of a rule of construc- 

 tion than of a statute upon which rights are based. Again I am 

 indebted to the learned Attorney-General for the very just exposi- 

 tion of that relation. He says [p. 1073 supra] : 



" Of course in dealing with international law in relation to 

 treaties, a subject with which I have already dealt at such length, 

 I admitted that international law, when well established and clearly 

 proved, like municipal law, may be taken as the basis of a contract, 

 and may be read into a contract on those matters as to which the con- 

 tract is silent because, no doubt, the parties were contracting with 

 knowledge of the law." 



In that statement, with which I fully agree, my learned friend 



demolishes with one blow the ingenious and subtle argument which 



he had made upon Question 1 in regard to the futility of the United 



States undertaking to base any claim of right here against Great 



Britain upon a rule of international law. The argument had been 



that international law can be established only by proof of cus- 



1283 torn; that a servitude can be established only by proof of a 



convention; and that therefore it is impossible that a servi- 



92909 S. Doc. 870, 61-3, vol 11 35 



