ARGUMENT OF MR. ROOT i8i 



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 unwill- 

 ing to continue the broad grant of 1783, and insisting upon the 

 narrow hmitations 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 harbors within the exclusive juris- 

 diction of Great Britain, particulariy on coasts now inhabited, 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 utihty 

 of an estate belonging to another owner." 



Article 686: 



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

 of their property such servitudes as appear to them proper, provided, never- 

 theless, that the use estabUshed shall not be imposed either upon a person 

 nor in favor of a person, but only upon an estate, and for an estate, and pro- 

 vided that these burdens shall moreover contain nothing contrary to public 

 order. The use and extent of the servitudes thus established are regulated 

 by the grant which constitutes them. In default of such provision by the 

 following rules." 



And, among those rules, Article 697: 



"He to whom a servitude is granted has the right of doing everything 

 necessary to make use of it and preserve it." 



Article 701: 



"The owner of the servient domain can do nothing which tends to diminish 

 the use of it or render its use more inconvenient." 



Now, that is what we may reasonably assume was what the 

 French civilians called a servitude. And that, according to the 

 report of Mr. Gallatin, is what the British negotiators considered 



