ARGUMENT OF MR. ROOT 123 



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 Hmited 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, 

 instead of making an express reservation, of estabUshing a standard 

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

 or the most favored nation. But the Tribunal will see that 

 equally estabUshes 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 favored 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 

 standard of regulation of citizens, or the standard of regulation or 

 control which is applied to the most favored nation; and that is 

 the common practice now, to put these treaty rights on the most 

 favored 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 treating, he wUl find the origin of the idea in express reserva- 

 tions, and coming down he will find the general rule, the establish- 

 ment of a standard of treatment. 



The President: May I ask, Mr. Senator Root, if this dis- 

 position were not inserted, would the citizens of both parties have 

 been exterritorial? Was it the practice before the conclusion of 

 these treaties that a citizefi 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 ex- 

 territorial ? Was it necessary to exclude exterritoriaHty by a specific 

 provision ? 



Senator Root: Not so far as the application of the ordinary 

 jurisdiction was concerned, but so far as the treatment of the very 

 right which he was exercising in the period concerning which we 



