ARGUMENT OF JOHN S. EWAET. 1427 



am afraid very probable that because of their divergent interests, 

 there would be disagreement. Whereas, if the matter is left in the 

 hands of Newfoundland, we might go on for another hundred years, 

 Sirs, with as little objection as the record will show has been made to 

 any Newfoundland or Canadian legislation during the last hundred 

 years. 



I pass entirely the question of servitudes, not merely because the 



Attorney-General is going to deal with that subject fully, but 



862 also because of my submission that it has really nothing to do 



with the subject before the Tribunal; and I give three reasons 



for that. 



In the first place, from the point of view of municipal law. The 

 right which is claimed here is a right to take fish, not merely for 

 the purposes of the territory of the United States, but a right to take 

 fish for commercial purposes, and it is therefore not such a right as 

 could have been attached under municipal law to a territory at all. 

 The members of the Tribunal are sufficiently familiar with the civil 

 law to see the application of what I have suggested. 



The second point regards the matter from the point of view of the 

 jurists who have substituted the sovereign for the prcedium domi- 

 ?uins. I say that this treaty will not come within the suggested law 

 as to servitudes, because this is a liberty reserved not for the citizens 

 of a sovereign, but for the inhabitants of a certain locality ; and that 

 there cannot be a servitude in favour of a sovereign for the benefit 

 of any persons but his own subjects or citizens. If he is to follow 

 with his sovereignty into foreign waters the persons who are the 

 beneficiaries of the treaty, they must be his own subjects. He cannot 

 follow with his sovereignty into foreign waters or foreign territory 

 persons who. although beneficiaries of the treaty, are not his subjects 

 or citizens. 



My third point is that the liberty is not of a permanent character. 

 Senator Turner declared that permanency was one of the requisites 

 of a servitude. I am not quite so sure of that. I am not quite sure 

 that he was using the word in the sense in which the civil lawyers 

 used it. But without contravening his statement (and it is not my 

 purpose to do that at the present time) , I say that if permanency is 

 a necessary requisite of a servitude, then this treaty will not come 

 within the description; because, as to drying and curing fish, it was 

 terminable with the settlement of the localities, and it is quite possi- 

 ble that all of the localities may in time be settled, and that therefore 

 that part of the treaty may come to an end. 



I ask leave now to occupy a little time with what has been spoken 

 of as the partition and continuation theory the theory which has 

 obtained in the United States from 1814 down to the date of the 

 delivery of the Case of the United States in the present proceedings. 



