AEGUMENT OF ELIHU ROOT. 2131 



SENATOR ROOT: Certainly not. 



JUDGE GRAY : You do not suppose Lord Salisbury had that in mind, 

 or that any of the negotiators (unless Mr. Gallatin, who alluded to 

 a servitude) had in mind any relation to this definition by the writers 

 up to that time? 



SENATOR ROOT: I suppose the negotiators understood the way in 

 which rights of that character were generally regarded. I sup- 

 pose that the testimony of these writers whom I have been reading 

 shows what the general view of nations was before 1818. and I sup- 

 pose the trained diplomats of Great Britain and of the United States 

 who were there, participated in that general view regarding those 

 rights. I do not suppose that they considered that they were acting 

 under a technical rule of servitudes. But I am citing the evidence 

 which sustains this view of this particular kind of right; first, be- 

 cause it confirms the reasoning which has been presented to the 

 Tribunal through the poor efforts of counsel for the United States, 

 by similar reasoning, reaching similar conclusions, on the part of 

 many of the greatest, the ablest, and the wisest of mankind; and, 

 second, because it is evidence that the nations before the treaty was 

 made took the same view of these rights that we are taking now. I 

 am not basing our position upon any technical rule of servitudes, 

 but supporting it by the evidence that similar conclusions had been 

 reached by wiser and abler men than we at this bar, and thut those 

 conclusions had entered into the way of regarding this kind of right 

 on the part of the nations of the earth. 



This particular specific kind of right which these gentlemen call 

 " economic servitudes " has been recognised as constituting a class 

 by itself, so freely, so generally, that I submit the Tribunal cannot 

 ignore the fact that it is a class by itself, and a class which has the 

 incident that I have been contending for. 



I say we produce evidence that the conclusion which we have been 

 urging upon the Tribunal, whether on the basis of real right, or 

 on the basis of the limitation created by an obligatory stipulation 

 the conclusions we have been urging upon you, have been reached 

 by substantially all the writers upon International Law, and ac- 

 cepted by the nations of the earth, and constitute a rule of con- 

 struction to be applied to this treaty, powerfully supporting our 

 reasoning, arid making it impossible to ignore that, because of the 

 insignificance and incompetency of the men who presented it. 



That these rights which are called " economic servitudes," and 

 which I should prefer to call burdens upon the territory of one 

 State for the benefit of the inhabitants or citizens of another, con- 

 stitute a class by themselves, appears in the writings which we have 

 presented, and from Vattel, Chretien, Despagnet, Diena, Fabre, 

 Fiore, Hartmann, Heffter, Hollatz, Rivier, Ullmann, Wharton, 



