ARGUMENT OF MR. ROOT 235 



view, as under the real view, against that position, stands always the 

 definition of international law by the great Mansfield — justice, 

 equity, convenience, the reason of the thing. I care little by what 

 pathway you reach your conclusion, because I am so optimistic as 

 to believe that this great empire of Britain will continue so long as 

 cod-fish swim around the shores of Newfoundland, and that never, 

 during aU these long ages, will there be another war between Great 

 Britain and the United States. 



When I made a statement regarding the Roman Law to the 

 effect that if a man grants an iter or a via over his land to another, 

 the discretion to determine where to lay out the iter or the via was 

 in the person to whom it was granted, I think there were some 

 symptoms of doubt or dissent. 



Sir Charles Fitzpatrick : Yes, I think you can attribute that 

 to me; I wiU take the responsibiHty for that. 



Senator Root: My own authority as a civilian is too Httle to 

 let that statement stand by itself, and I beg to cite as authority 

 a section of the Digest of Justinian from Mr. Munro's translation. 

 The work was produced at Cambridge by a Fellow of Gonville and 

 Caius College, Cambridge, and pubUshed in 1909, second volume, 

 65th page, 9th paragraph of the first title of the book. Digest 5 : 



" If a via over anyone's land is conveyed or bequeathed to a man without 

 more" [a note says the Latin word here is "simpliciter." If a via over any- 

 one's land is conveyed or bequeathed to a man "simpliciter"], "he will be 

 at liberty to walk or drive without restriction, that is to say, over any part 

 of the land that he hkes; only, however, in a reasonable way, as the language 

 which people use is always subject to some tacit reservation. The party 

 cannot be allowed to walk or drive through the house itself, or straight across 

 the vineyards, when he might have gone some other way with equal con- 

 venience and with less damage to the servient land." 



You will see that sustains the same proposition which is stated 

 in section of the Code Civile of 1804 to which I referred as elucidat- 

 ing Mr. Gallatin's reference to the French civilians. 



And there is another authority running along a cognate Line of 

 contract which was so great an authority at the time when this 

 treaty of 1818 was made that I think it may be interesting for the 

 Tribunal to have it. 



It is in Hargrave and Butler's "Coke upon Lyttleton." 



