1664 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



not one single element of the definition remains at the end of the 

 argument. 



Mr. Root may try to restore it, but I think it will be found that 

 the definition disappears entirely when compared with the authorities 

 and with the facts. 



Having stated what the servitude is that I have to deal with, how 

 it is defined and how I shall propose to attack the definition, I now 

 ask myself: What are the propositions that the United States must 

 make good in order to apply this servitude, so defined, to this con- 

 tract? What must they prove? They must make good four propo- 

 sitions. First, they must show that the doctrine of servitudes was, 

 at the date of the treaty, part of the international law; otherwise, 

 of course, it could not be made the basis of any implication or implied 

 term in the treaty. A treaty between States, like a contract between 

 parties, is the law of the parties. It is the law by which they are 

 content to be judged in relation to the particular transaction and, of 

 course, they do not trouble to put up the whole body of law which 

 governs them in the contract. They treat it as the basis upon which 

 they are contracting. Two merchants, who are making a bargain 

 for the sale of goods, do not set out the whole of the municipal law 

 as binding them. They treat that as understood and known to both 

 parties and then they make clear and explicit only those terms which 

 are particular to themselves. Of course, the law must be clear; the 

 law must be known. It must not be assumed that two States or 

 two individuals are contracting with reference to a particular 

 1006 law unless it is quite clear that there is a law and that both 

 of them shall and do know what they have done. The first 

 proposition they must make good is that the doctrine of servitudes 

 formed a clear, a universal, or a widely known part of international 

 law. They do not show that. 



But, however, I take their next proposition. They must show that 

 such servitudes brought about, not a mere limitation or restriction 

 of sovereignty, such as is common to all parties who make any con- 

 tract, because everybody who enters into the simplest obligation to 

 that extent fetters his future action, and sovereignty does not mean 

 that a State is not to fetter its own action if it pleases. Its sover- 

 eignty would be worth very little unless it were able to enter into 

 binding and durable obligations which hamper its future conduct 

 for its own good. So that, merely to say that a State limits the 

 exercise of its sovereignty is not to say that it is transferring sover- 

 eignty or detracting from its own self-governing and legislative 

 power. The United States, therefore, have to show that there is 

 something more than a limitation of sovereignty attaching to the 

 notion of a servitude and that the servitude imported a transfer of 



