AHQTJMENT OF SIR WILLIAM ROBSON. 1665 



the sovereignty itself, not a mere restriction upon the exercise of the 

 power. 



Then, the third proposition, and it is perhaps the most important 

 of the propositions and the one in regard to which they have failed 

 most completely, has reference to the extent of the servitude, namely, 

 that its effect in making a transfer of sovereign Power was well 

 known, and not merely well known, but, speaking substantially, uni- 

 versally known, at the time of the treaty, because you cannot import 

 that as an implied term unless the parties could be reasonably taken 

 to have known it. Of course, in municipal law we are bound to know 

 the law. In municipal law, one of the maxims of our own law, and 

 I dare say some analagous maxim will be found in the law of every 

 country, is that no man can excuse himself for a breach of the law 

 by pleading ignorance of the law. But, when we are dealing with 

 international law, a law founded on consent, you have to prove the 

 existence of your law, just, as in a contract between private parties, 

 you would have to produce a statute, or prove, in England, where 

 we have much law not dependent upon statute, that the obligation 

 is founded in Avhat is called the common law of the land. In inter- 

 national law you cannot produce your statute. There is none. There 

 is nothing but the practice of States, but if you are going to treat 

 this practice of States as binding the parties, in the absence of express 

 stipulation, you must show that they knew the law and contracted 

 with reference to it, or that it was then so widely known that the 

 parties to the contract might reasonably be assumed to have known 

 it, that they ought to have known it and could not have helped 

 knowing it. 



That is the third proposition, and the fourth proposition they 

 have to show in order to establish their case is that the right of fish- 

 ing was a servitude. I think on each of the four they will be found 

 to have failed to have produced any relevant evidence whatever, 

 because it is not a mere question of weighing evidence and saying: 

 Is it quite enough to meet the burden of necessary proof ? In a ques- 

 tion of that character it is even this: Is there any evidence at all 

 any to be considered with regard to these four matters ? 



Those are the propositions they have got to establish ; and the next 

 question that occurs to one in examining this doctrine is: How are 

 these propositions to be proved ? How are they to be proved, before 

 we ask are they proved or not? What is the method and only method 

 open to them of proving those statements which it is incumbent on 

 them to establish? I have already indicated, in putting both the 

 propositions themselves, the mode and the only mode by which they 

 can be proved. Mr. Turner and I are there quite in accord. He laid 

 down very clearly an indisputable and sound proposition of inter- 



