2 so FISHERIES ARBITRATION AT THE HAGUE 



I will not multiply these citations, they are to be found in the 

 copious extracts presented by Mr. Turner. I select them from 

 different periods, from most approved writers, showing illustrations 

 of the testimony regarding the nature of this rule, and I care not 

 whether you say that this is a real right or an obHgatory right, it 

 is proved beyond peradventure that the nations have confirmed 

 by usage, and regard as a matter of rule, that this kind of right is 

 a right which in Kmiting sovereignty excludes the sovereignty of 

 the burdened state from diminishing, modifying, or restricting the 

 right that constitutes the burden. 



JxjDGE Gray: You do not depend on that, Mr. Root, do 

 you, for the contention that there was no right to modify or 

 limit? It does not depend upon its classification as a technical 

 servitude ? 



Senator Root: Certainly not. 



JtTDGE 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 

 suppose 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, because 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 conclu- 



